BY Satya Prakash
Twentieth century German jurist and legal philosopher Hans Kelsen, who propounded the theory of ‘grundnorm’ i.e. basic norm, talked of the need to find a point of origin for all laws for their legitimacy. Such a basic norm was conceived as the Constitution, which forms an underlying basis for a legal system.
If one were to apply Kelson’s theory to India, one would be surprised to find that there is no provision in the Constitution to deal with registration and regulation of political parties, which in fact run the political show.
The obvious oversight of our Constitution makers was repeated in 1951 when the Representation of People Act was enacted to provide for conduct of elections and to prescribe qualifications and disqualifications for membership of both Houses of Parliament and state Assemblies. The focus of the Act remains individual candidates contesting polls and not political parties, which pull the strings from behind.
This glaring omission was pointed out by the Law Commission (170th Report, “Reform in the Electoral Laws”, 1999). “Whether by design or by omission, our Constitution does not provide for the constitution and working of the political parties, though they are at the heart of a parliamentary democracy,” it noted.
As the law stands today, there is no express provision either in the Constitution or RPA to regulate internal democratic functioning of political parties. Even Section 29A(5) —added to RPA as an afterthought in 1989 — only provides that every application to EC shall be accompanied by a copy of party memorandum or regulations, with a specific provision “that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India”.
The EC’s “Guidelines and Application Format for the Registration of Political Parties under Section 29A”, too, limits itself to registration of political parties and remains silent on regulating internal functioning of parties. In the absence of penal provisions, EC feels helpless in forcing parties to hold regular internal elections.
The irony is that EC can register a party but it doesn’t have the power to de-register it for violation of its own constitution and undertaking. A political party can only be de-registered if its registration was obtained by fraud or if it is declared illegal by the government; or if it amends its internal constitution and tells EC that it can no longer abide by Indian Constitution.
Even the Supreme Court in Indian National Congress (I) versus Institute of Social Welfare (2002) said neither Section 29A of RPA, nor the Election Symbols (Reservation and Allotment) Order, 1968, empowered EC to de-register a political party.
In December 2016, then Chief Election Commissioner Nasim Zaidi expressed suspicion that many registered parties existing only on paper were abusing these lacunae to route dodgy cash. After every two days a political party was registered and there were over 1,900 registered political parties in India, he had said, adding, only 400 of them contested polls during 2005-15 and many of them were used as conduits for siphoning off black money.
To plug the loophole, Law Commission (255th Report on Electoral Reforms, 2015) recommended that a new Chapter should be inserted in RPA on “Regulation of Political Parties”.
Barring the ideology-based parties, most political parties — particularly regional ones — remain family fiefdoms. Notwithstanding endorsements of their candidates in elections, their functioning grossly undermines democratic norms. It is high time internal party democracy is treated as a sub-set of democracy and EC is empowered to regulate political parties’ functioning. There are laws in Germany, Portugal and other countries to regulate political parties. There is no reason it can’t be replicated in India.
from The Tribune http://bit.ly/2GQDZR2
via Today’s News Headlines
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