Who will enforce duties of political parties?

“What difference does it make to the dead, the orphans, and the homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy?” once asked Mahatma Gandhi. Parties which are totalitarian in nature cannot protect liberty of people at large. Who has to question and insist on democratic functioning of political parties?

The report of the National Commission to Review the Working of the Constitution (2002) given by former Chief Justice of India, Justice M N Venkatachalaiah, reflected “increasing concern about the decline of Parliament, falling standards of debate, erosion of the moral authority and prestige of the supreme tribune of the people.” The political parties which send their representatives to Parliament should take responsibility of the situation and if they are not professionally organised but dominated by persons or families, the state should find out means of regulating them. As on today there is no legal mechanism to insist on systematic organisation and regulation of political parties.

Constitutional status: Though the expression “political parties” was nowhere mentioned in the Constitution in 1950 they hold constitutional status and wield constitutional powers. Reading provisions of the Constitution along with the Tenth Schedule, political parties have power to a) disqualify legislators from Parliament and State assemblies; b) bind legislators in their speeches and voting inside the house; c) decide what laws are made; d) decide whether government remains in power or which government should come to power; e) decide public policies that affect lives of millions of people.

Article 102 (2) of the Constitution stipulates that a person can be disqualified from being a member of either House of Parliament under the Tenth Schedule and a similar provision exists for the state legislators under Article 191 (2) of the Constitution. Under Article 102 (2), if a member of a House belonging to a political party votes or abstains from voting in the House contrary to the directions issued by the political party, he is liable to be disqualified from being a Member of the House.

Statutory Status: Representation of People Act, 1951 gave statutory status to the political parties under section 29A. Under that section, there is a mandatory condition that the political parties are required to bear true faith and allegiance to the Constitution. These parties select the contestants from them and if people give them more votes they take over the governance. Thus, the Political Parties are essential instrumentalities of democratic governance as per the Constitution. Though it was not named, political party is a constitutional institution which gains constitutional authority immediately when its members occupy majority seats in legislature. After a thorough research and debate, an international organisation culled out ten principles of regulation to guide legislative houses to make a regulatory law. They are:

1. Freedom of Association: This freedom is exercised by the people who form a political party, which is “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”. This is not absolute freedom. It can be limited. However, only convincing and compelling reasons can justify any limitations on this freedom. These limits must be necessarily prescribed by law in a democratic society, and proportional in measure.

2. State’s duty to protect right of free association: Like any freedom guaranteed against the state, it is the duty of State to protect the Individual Right of Free Association. Further, the State has the responsibility to enact legislation to prohibit interference from non-State actors as well as to itself refrain from such interference. Where violations of the right to free association occur, the State should bear responsibility to provide reparation, as appropriate, and to ensure the cessation of the violation.

3. Legality: Any limitations imposed on the right of individuals to free association and expression should have their formal basis in the State’s constitution or parliamentary acts. Such limitations should not be the result of partisan political activity but based on a legitimate aim necessary in a democratic society.

4. Proportionality: As per international norms, in the case of political parties, given their fundamental role in the democratic process, proportionality should be carefully weighed and prohibitive measures narrowly applied. The dissolution of political parties, or barring the establishment of a political party, is the most extreme sanction available and should never be imposed unless such measure is proportionate and necessary in a democratic society.

5. Non-discrimination: This is another major principle of State regulations of political parties. Such law should not discriminate against any individual or group on any ground such as “race”, colour, gender, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation or other status.

6. Equal Treatment: All individuals and groups that seek to establish political parties must be able to do so, on the basis of equal treatment before the law. No individual or group wishing to associate as a political party should be advantaged or disadvantaged in this endeavour by the State, and the regulation of parties must be uniformly applied. In order to eliminate historical inequalities, measures can be taken to ensure equal opportunities for women and minorities.

7. Political Pluralism: Legislation regarding political parties should aim to facilitate a pluralistic political environment. The ability of citizens to receive a variety of political viewpoints, such as through the expression of political party platforms, is commonly recognised as critical element of a robust democratic society. Pluralism is necessary to ensure individuals are offered a real choice in their political associations and voting choices. Regulations on the functions of political parties should be carefully considered to ensure they do not impinge upon the principle of political pluralism.

8. Good Administration of Legislation Pertaining to Political Parties: Legislation should also ensure that regulatory bodies are required to apply the law in an unbiased and non-arbitrary manner. The implementation of legislation relevant to political parties must be undertaken by bodies that enjoy guaranteed impartiality both in law and in practice.

9. Right to Remedy for Violation of Rights: Political parties should have recourse to an effective remedy for all decisions affecting their fundamental rights, including those of association, expression and opinion, and assembly. The principle of effectiveness requires that some remedies be granted expeditiously.

10. Accountability: Political parties may obtain certain legal privileges from registration as political parties that are not available to other associations. This is particularly true in the area of political finance and access to media resources during election campaigns. Certain obligations like reporting requirements or transparency in financial arrangements shall be imposed.

Any regulatory law, which is the dire need of India now, should incorporate these provisions to secure the listed obligations and rights. Because regulation does lead to deprivation of constitutional rights of association of people in the form a political party.