A law for law makers

A law for lawmakers Jagdeep S Chhokar GovernanceNow | August 16-31, 2011 Indian polity is in a state of flux. Almost all political formations are in the process of trying to deal with their internal demons, some more ferocious than the others. The phenomenon is so widespread that some commentators, and many politicians, have been raising the alarm that democracy, particularly parliamentary democracy, is under threat. Nothing can be farther from truth. Political activities are integral to democracy but they are neither the same nor do they perform the same function. The three major manifestations of the crisis in the polity are: (a) the series of big ticket corruption scandals, (b) the Lokpal movement, and (c) three supreme court judgments (the black money judgment – Ram Jethmalani and others vs Union of India and others, writ petition (civil) no. 176 of 2009; the Salwa Judum – Nandini Sundar and others vs State of Chhattisgarh, writ petition no. 250 of 2007; and the Delhi Jal Board judgment – Delhi Jal Board vs National Campaign for Dignity and Rights of Sewerage and Allied Workers & others, civil appeal no. 5322 of 2011). While these three, taken together, do represent a challenge to the political establishment to mend its ways by reforming itself, the fact that the political system has almost been forced to take note of people’s sentiment and has had to act, react or respond (depending on the perspective one takes) shows that democracy in India continues to function but in its own ways, not necessarily following any theoretically prescribed blueprint. There is absolutely no doubt that Indian democracy will come out of this series of tests stronger than what it was earlier. It is in the same spirit of strengthening and deepening democracy in the country that the five preceding instalments in this series on electoral reforms have highlighted several aspects of our election system that need specific actions to make our democracy even more robust. The guiding philosophy behind these suggestions is that democracy is not a destination but a journey. No society can rest assuming that the best possible democracy has been achieved and we need not do anything more. A recurrent theme in the preceding five instalments has been the functioning of political parties. Measures to improve the functioning of political parties do not have to be discovered anew. They have been suggested earlier but, sadly, have not resulted in any action. The reason is simple: it is the political parties that are authorised to take that action. Instead of taking piecemeal action, the proposal for a comprehensive legislation for the regulation and functioning of political parties has been around for more than a decade. As we have seen in the earlier five instalments on various issues, the first comprehensive view on this was also taken by the law commission over 12 years ago, in 1999, in its 170th report titled ‘Reform of the Electoral Laws’ by making the following observations: “On a consideration of the various views expressed in the four seminars aforesaid and the vast number of responses received by us, we have come to the conclusion that for successful implementation of any of the aforesaid proposals, or for that matter for bringing a sense of discipline and order into the working of our political system and in the conduct of elections, it is necessary to provide by law for the formation, functioning, income and expenditure and the internal working of the recognized political parties, both at the national and state levels…” (Emphasis added) (Para 3.1.1). “With a view to introduce and ensure internal democracy in the functioning of political parties, to make their working transparent and open and to ensure that the political parties become effective instruments of achieving the constitutional goals set out in the preamble and parts III and IV of the constitution of India, it is necessary to regulate by law their formation and functioning. In this connection, reference can be had to the law laid down in the nine-judge constitution bench of the supreme court in S R Bommai v. Union of India (1994 (3) SCC1). Explaining the concept of secularism implicit in the constitutional provisions, the court made the following observations at page 236: “…inspired by the Indian tradition of tolerance and fraternity, for whose sake the greatest son of modern India, Mahatma Gandhi, laid down his life and seeking to redeem the promise of religious neutrality held forth by the Congress party, the founding fathers proceeded to create a state, secular in its outlook and egalitarian in its action… if any party or organisation seeks to fight the elections on the basis of plank which has the proximate effect of eroding the secular philosophy of the constitution it would certainly be guilty of following an unconstitutional course of action… if the constitution requires the state to be secular in thought and action, the same requirement attaches to political parties as well.” (Para 3.1.2). “Conclusion: Keeping the aforesaid considerations in mind, we recommend that new part, part II-A, entitled ‘Organisation of Political Parties and matters incidental thereto’ be introduced/inserted in the Act, containing the under-mentioned sections:…” (Para 3.1.3) What the law commission then went on to do was to give the actual draft for amendments to be made to the Representation of the People Act, 1951, by repealing its section 11 and 11B, and inserting section 11-A to 11-H, under part II-A of the Act, to be titled “Organisation of Political Parties and matters incidental thereto”. The draft prepared by the law commission can be accessed at the following: http://adrindia.org/files/Organisation% 20of%20Political%20Parties%20 and%20matters%20incidental%20 thereto_2nd%20august.pdf. The next commission to comment of this issue was the national commission to review the working of the constitution (NCRWC) in 2001. One of the first things the NCRWC did was to identify “some areas of immediate concern.” One of these was “Institutionalisation of political parties – need for a comprehensive legislation to regulate party activities, criteria for registration as a national or state party – derecognition of parties” (Para 4.29). This was followed by a section titled “Law for Political Parties” in which the NCRWC said the following: “4.30.1 The commission recommends that there should be a comprehensive legislation [may be named as the Political Parties (Registration and Regulation) Act], regulating the registration and functioning of political parties or alliances of parties in India. 4.30.2 The proposed legislation should provide for compulsory registration for every political party or pre-poll alliance. It should lay down conditions for the constitution of a political party or alliance and for registration, recognition and de-registration and de-recognition. 4.30.3 The commission recommends that every political party or alliance should, in its memoranda of association, rules and regulations provide for its doors being open to all citizens irrespective of any distinctions of caste, community or the like. It should swear allegiance to the provisions of the constitution and to the sovereignty and integrity of the nation, regular elections at an interval of three years at its various levels of the party, reservation/representation of at least 30 percent of its organisational positions at various levels and the same percentage of party tickets for parliamentary and state legislature seats to women. Failure to do so should invite the penalty of the party losing recognition” (Emphasis added). The second administrative reforms commission (ARC), in its fourth report, titled ‘Ethics in Governance’ (2007) makes a very incisive observation: “In the ultimate analysis, the state and a system of laws exist in order to enforce compliance and promote desirable behaviour. Therefore, enforcement of rule of law and deterrent punishment against corruption are critical to build an ethically sound society. A detailed analysis of our anti-corruption mechanisms and the causes of their failure is necessary in order to strengthen the forces of law and deter the corrupt public servants” (Emphasis added) (Para 1.11). How can “desirable behaviour” among political parties be promoted in the absence of “any system of laws” concerning political parties? The above observation of ARC should alert the nation to the glaring gap in legislation, as a result of which there is no law governing the functioning of political parties in India, the need for which has been eloquently brought out by the recommendations of the law commission and the NCRWC, excerpted above. While the need for comprehensive legislation for the functioning and regulation of political parties is established, the content of such legislation has not gone unattended. A committee headed by the former chief justice of the supreme court of India, Justice M N Venkatachaliah, has drafted a bill to regulate the functioning of political parties. The draft of this bill can be accessed at the following: http://adrindia.org/files/Draft%20of%20 Political%20Parties%20(Registration%20 and%20Regulation%20of%20Affairs,%20 etc_)%20Act,%202011,2nd%20august.pdf. Efforts to get socially desirable legislation enacted are in the limelight for the last few months. A lot of experience is now available on what to do and what not to do to get such legislation enacted. The importance of social action in bringing about social, legislative, and even judicial change cannot be overstated. That much maligned section of society, concerned citizenry or civil society will have to take the lead on this. Chhokar is a former dean of Indian Institute of Management, Ahmedabad, and a founding member of Association for Democratic Reforms and National Election Watch.