India is not only the world’s largest democracy but also the most dynamic and flourishing democracy in the world as of now. Various social and political changes have been taking place in the country and the pillars of governance have been increasingly becoming democratic in its functioning. The democratic principles and the Constitution are more or less followed by both, state and common man in pretentious terms. But if there is one institution, where there is complete lack of internal democracy and disregard to its individual constitution, it’s the political parties. The bizarre irony is that these parties are the institutions that play a major role in running the Indian democracy through their leaders and representatives by preaching democracy and its principles to the entire country. But sadly, when it comes to preach the same, they make a complete volteface. Forget about Indian Constitution’s principles, they end up defying their own constitution and its principles.
The leaders of the political parties are expected to promote and encourage debate, discussions, and dissents in the country as a means to propagate the essence of democracy and transparency. People are expected to voice their views without fear of intimidation and express dissent as and when they feel dissatisfied with the opinion of any individual or organisation. But political parties are miles away from this proposition and they tend to keep themselves away from all this quintessential part of democracy.
There are numerable instances through which it can be inferred that Indian political system suffers from the vice of lack of democracy and transparency in its functioning including defections, confining MLAs into hotels and resorts, election of party leadership and functioning of party. The best part in this is that all the political parties seems to be on the same page and no one out of them is different from others when it comes to these things. Well, this might sound little ironical about this political unity and comity, this is the truth.
Laws against Political defection and chilling effect on Free speech
Out of all such instances, political defection is the most pertinent example of something which undermines the democracy in India. It is something which is a very common phenomenon in the political system and a quarterly event which has almost become unavoidable in the contemporary and modern democracy in India. To combat this evil of defection, India was one of the first states to enact the law against defection, also known as anti-defection law. India regulates such defections through Articles 102 and 191 of the Constitution along with the Tenth Schedule of the Constitution of India which was inserted way back in 1985, as a means to disqualify members on certain grounds. The grounds which is little disturbing is that the legislators shall be disqualified from the house in case he/she defies the party whip on any issue.
Most of the advanced democracies have not enacted any law against defection and have given free space for dissent in the system. In UK and US, it’s a routine phenomenon that legislators often disagree with their own party and partymen, and defy their party whip when they don’t agree with the views of the party on certain issues. Infact, in UK, the members often lose their individual membership from the party, but not their membership from the parliament. In US, Congressmen are not defected when they vote against their own party on any issue of importance. Compared to this, the law in India against defection is very strict and even a miniscule of dissent against the party and its whips on any issue might attract disqualification from the house.
In India, legislators are not free to express dissents against their own party and they have to mandatorily align themselves with the view of party and its leadership, thanks to anti-defection law. It’s very obvious that the legislator cannot agree with the party and its leadership on every issue and should have right to express dissent. Due to these obstacles, various legislators were not able to express their independent views in the past on CAA, NRC Article 370, and Triple Talaq in the past because any such defying act would lead to their disqualification from the house. Recently, a deputy Chief Minister of the State of Rajasthan and few other MLAs of a State in India were served with a disqualification notice for inner party dissent which was equally violation of freedom of speech. While anti-defection law promotes political stability one hand, on the flip side, it doesn’t promote transparency, accountability, and representative democracy in the party. We need to remember that the legislators have their first duty, loyalty, and responsibility not towards their party or the leadership but towards their individual constituency which elected them.
As already pointed above, debate and discussion should be profoundly promoted but such provisions clearly defeats the principles of democracy and free speech. Clearly, such things will help us in keeping a check on the government and party’s leadership. Here, we give more focus to central cabinet than the individual views. Such blanket provisions allows the defiance of principles of separation of powers wherein the legislators are bound to work on the direction of executive and can’t disagree with them. Amidst all this, the legislator does more damage to its constituency than anyone else. As if the legislature and executive didn’t deter much, the Supreme Court ruling made it more blatant that if you want to criticise own party’s decisions, you will have to lose your membership of the house since it calls for voluntary giving up membership of the house. Thus whole process of defection is a gaffe to the democracy and the whole contemplation process in our legislatures has been reduced to buffoonery.
Intra-Party democracy and Political parties
Intra-Party democracy tends to promote constitutionalism in the country and is essential for its survival because it affects the inherent quality of democracy in the country. In India, none of the political parties, be it national or regional, follow their individual constitution. There is no intra-party democracy within the political parties and almost all the parties are autocratic in their functioning. There are various measures to check this assertion like election of party’s head, election of candidates for state or national elections, and funding of the parties. Amongst all the parties, none of the parties seems to follow a democratic approach while appointing their head, selecting candidates for the elections, or funding the election rallies.
One of the major reasons for such existing mechanism in the country is that India’s political parties are more leader centric rather than centralised leadership. Due to this, most of the leaders are unwilling to channelize the whole procedure for selection of their party’s candidates. Almost every party seems to be perpetuating dynasty politics in India, ignoring a proper channelized method of system and election. There is complete lack of transparency to this and everything happens through an entirely undemocratic process.
How do we expect these parties’ leaders to promote democracy in the country when they themselves are not able to portray the same within the parties? How far we will be controlling the state politics through New Delhi or national leadership? When will we promote federal politics in the country? Probably, we can learn from Germany which has achieved a remarkable feat in ensuring intra-party democracy and transparency in party funding and internal elections.
Some efforts had been made by some people to combat this deficiency of anti defection law and promote intra party democracy, but all those efforts had been in vain. It is pertinent to note that in the past, a private member bill was moved by an legislator Mr. Manish Tewari to amend the anti defection law with a view to promote healthy discussions and free speech of legislators. But sadly, it couldn’t attain any finality. A PIL was filed in High Court of Delhi seeking directions from the court to Election Commission to formulate guidelines to regulate parties and bring intra-party democracy which was ultimately rejected. Top leaders from the two major national parties of the country including the incumbent Prime Minister have even expressed their concerns regarding the intra party democracy in the country. Despite all this efforts and concerns, no efforts have been taken by either organs of the democracy to promote free speech of parliamentarian and intra party democracy.
Recently, a petition was filed in the Rajasthan High Court by Sachin Pilot and other MLAs challenging the legality of the show cause notice by the Speaker served to them for not attending the party meeting and expressing dissent to the state leadership wherein they also challenged the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India. While ordering the status quo to be maintained on the showcause notices issued by the speaker, the Court framed 13 question of law but didn’t order anything on merits. While this has been challenged in the Supreme Court, it would be interesting to observe the outcome of this petition considering the fact that this would be the first case of its kind where the Court would be deciding the defection on the issue of intra party dissent and not crossing over per se. No Court has ever decided the defection on the issue of intra party dissent. Another question which ought to be decided would be regarding the ambit of party whip. Whether the whip applies only when the house is in session or does it apply to the legislator outside the house as well including internal party meetings?
Conclusion
A Change is important because unless we democratised our political parties, we can’t really democratise the Indian parliamentary system. To promote the political stability and protect independence of legislators concurrently, it would be better if the current defection law is changed a bit. Possibly, the word term any issue should be removed and disqualification of members should not happen when they are willing to express their dissent against arbitrary law or policies which is being propagated by their party. The legislators should be allowed to exercise their right to freedom of speech and expression, as guaranteed under Article 19 (1)(a) of the Constitution. The legislators should be allowed to voice a difference of opinion outside the legislative assembly and it shouldn’t attract anti defection law. It should rather only happen if they are found defying the party’s leadership on few issues like money bills and no-confidence motions. Further, the member who has resigned shouldn’t be allowed to contest the by-election that happens soon after his resignation. Rather, he should be only allowed after the end of the term of the Assembly. In addition to this, it is high time that India develops a separate law for ensuring internal democracy amongst the parties along with financial transparency and accountability in their working. This is important because unless we democratised our political parties, we can’t really democratise the Indian parliamentary system.
Adv. Ankit Tripathi is a commercial litigator, appearing before various courts in tribunals. He is working as an associate with the chambers of Adv. J. Sai Deepak.