Rights and Privileges of political parties to do wrongs

Franklin D Roosevelt said: Democracy cannot succeed unless those who express their choice are prepared to choose wisely. The real safeguard of democracy, therefore, is education. It is for the people to choose their representatives. If they sell that choice, ignore or neglect, they have to suffer under misrule till next elections. They need to get educated to exercise their franchise wisely.

Political parties that want power and those which gained power have developed vested interest in keeping people either ill-informed or misinformed or uninformed. A political party is defined as “a free association of persons, one of the aims of which is to participate in the management of public affairs, including through the presentation of candidates to free and democratic elections”. It is neither a shop nor firm nor a company. Its character is described as a unique association. Political parties are essential for the development and sustenance of any pluralistic democracy. They are crucial instruments in ensuring participation in political life and the expression of the will of the people, which should form the basis of the authority of the government in a democratic state.

Rights of parties

As it represents a group of people, a political party, too, has fundamental rights. There is also a need to protect the rights of political parties which are based mainly on the rights to freedom of association, freedom of expression, and the right to assemble peacefully. Though the political parties are private associations, they are critical means by which citizens participate in their government and representative democracy is realised. The political parties are subject to a varying degree of regulation in different countries. Mostly the Constitutions of the countries govern this aspect.

As per the Constitutional guarantee the political parties must be protected as an integral expression of the individual’s right to freely form associations. At the same time states can regulate their functioning insofar as is necessary to ensure effective, representative and fair democratic governance.

Political party, Indian Constitution

National Commission to Review the Working of the Constitution said in 2002: “Political parties are indispensable to any democratic system and play the most crucial role in the electoral process – in setting up candidates and conducting election campaigns.”

Indian Constitution does not even mention about political parties in any part till Tenth Schedule is added to prohibit and regulate the defections of elected representatives. Even there the rule book deals only with political party’s legislative (or Parliamentary) wing and not with the ‘unique association’. Politicans are free to change their ideas and shift the parties. However an elected representative who won on a symbol, based on the ‘B’ form of a political party, has an obligation to quit the membership to exercise his freedom of expression to adopt a new party’s ideas (if any). Defection is part of freedom, but a condition to resign elected representative position is a reasonable restriction. The Constitution begins after the elections are over with the appointment of Prime Minister and Chief Ministers.

Is regulation necessary?

Several surveys and studies have shown that extensive regulation may not be necessary for the proper functioning of democracy, signifying that regulations that minimise legal control of party functions and clearly establish the limits of state authority may be the most appropriate. It was finally advised while it is not necessary that political parties be governed under a different legislation other than that for general associations, ideally, legislation should be developed that recognises the unique role that parties play in a democratic society.

In recent elections hundreds of crores of rupees have flown along with flood of liquor to influence the voters. Around five lakh voters exercised their voting rights twice. The corrupt electoral practices, the high cost of elections, abuse of money and muscle power, lack of representational legitimacy, appealing to voters on the basis of caste, creed, language and religion which are defined as corrupt practices and electoral offences under the Representation of the People Act, have eaten into the vitals of our democracy. The question is whether a political party could be regulated? Is there any law? First law that controls over all governance mechanism of the country including the tools of governance, i.e., political parties, is the Constitution. Second major legislation is Representation of People’s Act 1951 which made extensive provisions for regulating the conduct of contesting candidates and punishing their electoral crimes. It does not have any provision to disqualify a political party from contesting or continuing as a party. That is why the demand for due regulation of political party is gradually emerging in democratic countries.

Any democratic state under rule of law imposes an obligation on the state to protect free association for political parties extending it to cases even where a party espouses ideas that are unpopular. Paragraph 7.6 of the Copenhagen Document commits states to ensure that all parties, including those that present unpopular ideas, are able to compete with one another on an equal basis in law. As such, states may not deny such parties an equal opportunity to compete in elections or receive legally prescribed funding.

There are certain minimum standards like parties in democratic systems must reject the use of violence as a political tool and should not advocate or resort to violence, maintain their own militias or use hate speech as a political tool. Parties should not seek to disrupt meetings of rival parties, nor should they hinder the free-speech rights of those with opposing views. The set of legitimate grounds under which freedom of association may be limited is restricted to: “such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

Thus any party that resorts to violence or disrupts rival party’s public meeting, or encourages crimes or breaches the rights and freedoms of others have no right to continue in the public field. The problem before the nations like India is how to impose this legitimate restriction on the political parties, who will enforce it?