Opinion Maharashtra NCP split: Why anti-defection laws need to be reformed

Lack of regulations in the internal functioning of political parties is the fundamental problem. Solving this could help strike a balance between dissent within the party and constitutional morality.

The Election Commission of India (ECI) fundamentally draws its power of “superintendence, direction and control of elections” from Article 324 of the Constitution. Parliament has accorded specific powers and duties to the ECI through (primarily) the Representation of People Act, 1950. The Act, through Section 29A, gives ECI the power to register political parties.

Further, the Supreme Court in Indian National Congress (I) v Institute of Social Welfare & Ors (2002) made it clear the ECI cannot deregister a party for violating the Constitution or for breaching the undertaking given to it at the time of registration. This makes the ECI a mere spectator to the violation of the core principles of the instruments which are the source of its existence and powers.

The Tenth Schedule to the Constitution does not allow a legislator to switch party loyalties through voting against party direction on the floor of the House or through actions outside the House. The political party can choose to condone the actions of a legislator in case of the former. A defence — of two-thirds or more legislators in that House merging with any other party — is also available to the “defectors”.

The SC clarified a few points under the anti-defection law in Subhash Desai v Principal Secretary, Governor of Maharashtra (2023). The Court drew a distinction between a political party and legislature party. Resultantly, after a close reading of the provisions of the Tenth Schedule, it concluded that only the political party can appoint the leader of the legislature group and the whip. But how is one to determine which is the political party in question in case of a dispute?

The novel method in the case of Shiv Sena was the “defectors” claiming that they were the party and hence, there was no question of defection. The ECI has the power to decide disputes between factions of a political party, in case of a “split” under Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968. In such cases — according to the Supreme Court in Sadiq Ali v Election Commission of India (1971) — the “test of majority”, “test of party constitution”, and the “test of aims and objectives” can be used. In Shiv Sena’s case, the ECI rejected the latter two tests, because both factions were claiming to act in furtherance of the aims and objectives of the party, and the party constitution did not promote intra-party democracy.

The “test of majority” includes majority on two fronts — organisational and legislative. The test for the organisational front is supposed to be based on the apex decision-making authority. The ECI did not apply the test to the organisational front in this case since the apex decision-making authority was elected by an electoral college which was nominated by the President — thereby making it undemocratic.

The NCP’s case is a curious one. The constitution of the party available on the ECI website is a version from 2011. It does not outline the powers of office-bearers or the bodies, except that of the working committee. Several news outlets reported that after the Shiv Sena split, the NCP’s constitution was amended in order to avoid a similar situation in the party. However, this version is not available in the public domain; it is unclear whether it has been taken on record by the ECI.

According to reports, both factions — led by Ajit Pawar and Sharad Pawar — have passed resolutions expelling or suspending members of the other faction, and claiming to be the party. This question is likely to land at the doors of the ECI, which will have to decide another dispute in less than a year.

Imagine a situation where the state president of a national party appoints a whip in that state’s legislative assembly and the national executive appoints another person to the same position. Which whip is valid? What happens when the president of a party loses the confidence of the party? What is the procedure for removal? What is the procedure for suspension or expulsion of a member? The answers to these questions should ideally be found in the constitution of a political party.

Several parties have attempted to make their constitution relevant and comprehensive. But the more fundamental question is: Do all parties have a constitution? Out of more than 2,500 registered parties, the Election Commission website shows constitutions of 34 parties. In the present situation, there are no consequences for not having a constitution except the members leaving themselves vulnerable to the realpolitik of defections.

This conundrum can be solved by tweaking the law in two ways. First, a party constitution should be mandatory; one that lays down procedures beyond the existing requirement at the time of registration under Section 29A — outlining the role of the political party in relation to the legislature party (appointment of whip, etc.), removal and suspension of members, leadership challenges, and involvement of members in questions of leadership. Second, the ECI must be empowered to suspend registration or deregister a party on non-compliance with basic requirements.

This would help settle disputes within factions, including questions of leadership — as seen often in the UK — within a political party. Providing ways of expression of dissent and potential change of guard would protect a political party from breaking apart through subterfuge. An empowered ECI can ensure the enforcement of these rules to promote internal party democracy.

The 170th Law Commission Report, too, had recommended the addition of a Part IVC to the Representation of People Act to regulate the internal functioning of parties. A committee consisting of former judges, bureaucrats and lawyers had drafted the Political Parties (Registration and Regulation of Affairs) Bill for the same. The regulation of internal party democracy is not a novel idea, and can be implemented. It can be seen on a large scale in European countries. According to research by Ingrid van Biezen and Daniela Romée Piccio, out of the 21 countries, 12 require the role of members in leadership and seven provide the right to dissent and have an internal arbitration body. The regulation of internal party democracy is not a novel idea, and it can be implemented.

Although the ECI is empowered to decide on disputes within factions of a party, it is a lengthy quasi-judicial process which relies on an institution external to the political party to enter the domain of what is essentially a leadership question. This is because most of the political parties run as individual or family led-enterprises; there is no imagination of parties as institutions. Hence, the reluctance to introduce robust forms of internal democracy within parties.

With people coming up with newer forms of subverting the constitutional order and innovative ways of avoiding defection, there is a need to seriously reconsider the way parties are organised. Requiring internal party democracy could be a serious first step on that path.

The writer is political researcher, I-PAC. Views are personal