Election Commission & Dissent Within Political Parties, Time To Consider Reform Of Anti-Defection Laws

Though both these news events on Friday had to do with the ongoing tussle for supremacy between the two rival factions within the Shiv Sena, they point to the difficulties of adjudicating on different aspects of intra-party disputes in India. In other words, even as the Supreme Court shied away from deciding on the question of reference to a larger bench because the issue seemed to be abstract to it, the E.C. took the issue of inner-party democracy head on - despite its seeming abstraction - and applied it to the facts of the dispute before it, to arrive at a decision, though it may be vulnerable on merits.

The EC’s decision in the Shiv Sena matter turned out to be significant, as it supports the value of intra-party dissent in a democracy, even while favouring the rebel faction led by the Chief Minister, Eknath Shinde. The merits of E.C. 's application of abstract principles to the facts of the Shiv Sena dispute may be rightly appealed against by the Udhav Thackeray faction in the courts. For the voter, however, the question uppermost is whether the E.C. will now take its support to such dissent to its logical culmination and consider backing a wholesale reform of the Tenth Schedule to the Constitution.

Many have voiced the concern that the Tenth Schedule to the Constitution has, over the years, resulted in discouraging dissent within political parties, in the guise of punishing defection through the threat of disqualification.

Proposal before NCRWC

A proposal mooted before the National Commission to Review the Working of the Constitution (NCRWC) in 2001, for instance, sought to reform the Anti-Defection Act (Tenth Schedule) by providing that the legislative wing of every party shall have one block vote, which is equal in value to the number of members of that party in the House. The value of the block vote of each independent member or nominated member shall be equal to one. The fate of the motion would be decided by counting the total value of block votes, and not individual votes.

The block vote would be deemed to have been cast on that side of the motion on which a majority of the members of that block have voted. In the event of an equal number of members of a block voting for and against the motion or abstaining, the entire block would be deemed to have abstained from voting on the motion. The proposal required addition of a proviso to Article 100 (on voting in Parliament) and Article 189 (on voting in State Legislatures). The proposal enables a dissenting member of a party to freely express her opinion within the party forums and outside, even while encouraging the democratic principle of majority view within the party to prevail, whether on leadership or any other question.

Flaws in the EC’s order in Shiv Sena case

Even as the NCRWC ignored the proposal in its final report, India’s Parliament failed to resolve the issues of representation given rise to by the Tenth Schedule. Indeed, the difficulties of adjudication pertain to the fundamental nature of India's democracy, that is, its claim to represent the electorate through political parties and the candidates. Political parties in India have been an extra-Constitutional phenomenon, till 1985, when the Tenth Schedule to the Constitution, dealing with disqualification of legislators on the ground of defection was enacted, defining for the first time the terms, ‘legislature party’ and ‘original political party’.

But the Election Symbols (Reservation and Allotment) Order, 1968 predates the Tenth Schedule, and defines political parties for the purpose of recognition by the Election Commission. The classification of symbols as ‘reserved’ and ‘free’, and the capacity of reserved symbols in bestowing some electoral advantage to the parties, as compared to those contesting on free symbols, gave the Election Commission an enormous power to determine - through its quasi-judicial procedures - who, among the disputing factions of a political party - deserve a reserved symbol, if at all.

Indeed, the contest over the reserved symbol is only short-lived, as the history of Indian political parties and the electoral contests shows that the voters favour a faction at the hustings - not necessarily based on who succeeds in securing the reserved symbol from the Commission. Nevertheless, the contest over the reserved symbol has acquired importance over the years, and with it the legal arguments in support of or against the claims over the reserved symbol. These legal arguments tend to raise questions which have relevance for the success of India’s democracy.

Paragraph 15 of the Election Symbols Order enables the Commission to determine, on the basis of available facts and circumstances, and after affording both the factions an opportunity of being heard, which of the two factions before it merits recognition, if at all.

In the latest order on Shiv Sena, the Commission refers to the communication it received on June 25, 2022 from Anil Desai, Member of Parliament representing the Uddhav Thackeray faction, intimating it of alleged anti-party activities being carried by some party MLAs under the leadership of Shinde. This was followed by another detailed communication regarding the complete organisational structure of the National Executive Representatives of the party and June 25 and reiterated on July 4, 2022. However, as the communication was not accompanied by supporting documents in prescribed format, in the same manner, the party had done in February 2018, the Commission hinted that it considered it as inadequate.

Of crucial importance, however, is how the Commission decided that the disqualification proceedings before the Speaker had no impact on the proceedings before it to determine the rightful claimant to the reserved symbol of the party. In Paragraph 55, the Commission distinguished the disqualification of a legislator from membership of the legislature by the Speaker from removal of a person from membership of a political party. While the former situation is governed by the Tenth Schedule to the Constitution, the latter is governed by the Constitution of the political party, it said.

But the Commission recognises in Paragraph 65 that there exists an organic link between the legislators and the party organisation which cannot be ignored or thought of as wholly separate.

The Commission’s reasoning to jettison the tests of aims and objectives of the party, and its constitution is specious. The Commission concludes that the 2018 amendment of the party constitution has vested the party president with authoritarian powers. This, it says, consequently compromises on the norms of intra-party democracy and perpetuates fiefdom of an individual over the rights of innumerable party workers.

No one can disagree with the Commission’s statement that for a truly functioning democracy, it is important that one of the key stakeholders, that is, the political parties are run in a democratic manner and this in turn can be ensured only if the Constitution being adopted by them does not allow concentration of power in the hands of a few.

In paragraph 91, the Commission observes that governance in a multi-party democracy like India is steered by political parties and when the Constitutions adopted by such political parties are based upon democratic norms, it makes India’s democracy healthier and more vibrant. On the other hand, when a party Constitution turns its functionaries into puppets controlled by a leader with unabridged powers, the path only leads to degradation in democratic governance of the country, it says.

The Commission then concludes that in such a scenario, deciding a dispute in a recognised political party on the basis of a Constitution which creates a power centre rather than democratising the organisation will lead this Commission, a creature of the Constitution of India, blinking its eye to a foundational principle on which our Constitution was built upon. These observations have immense value as precedent, and can be applied to any political party, by lifting the veil.

Clearly, the Commission has assumed powers to decide on the internal functioning of political parties and its merits, without such powers being clearly envisaged under the law. If the 2018 amendment of the Shiv Sena’s Constitution is not satisfactory, then the present time is not the opportune time to decide it. The 2018 Constitution of Shiv Sena, the Commission says, confers widespread powers of making various organisational appointments on a single person.

The undemocratic norms of the original Constitution of Shiv sena, which was not accepted by the Commission in 1999, have been brought back in a surreptitious manner further making the party akin to a fiefdom, the Commission observes. Further, the 2018 Constitution, by way of its plain reading on the vital axis of remedy/modality of dissent, in such factual circumstances, stifles all options of rival groups in its very formulation, the EC concludes.

The Commission then concludes that the 2018 amendment of the party constitution is not in sync with its 1989 guidelines, besides being not on the record of the Commission, and therefore, rejects it as a useful tool to decide the present case.

Earlier, the Commission rejected the aims and objectives test because both the factions claim to adhere to it, and accused the other of violating it. After finding that the respective claims of numerical majority in organisational wing by both the factions is not satisfactory, it concluded that the outcome of legislative wing test as the fulcrum of the fact of the split and majority, can be recognised. The outcome of the majority test in the legislative wing clearly reflects qualitative superiority in favour of the Shinde faction, the EC concludes.

The E.C., in its order, articulates a compelling basis for all national and state recognised parties to regularly disclose to public at large the key aspects of its inner party functioning such as organisational details, holding of elections, being compliant with the conditions of registration, to follow the extant guidelines prescribed by the ECI for political parties and to ensure that their party constitution reflects democratic ethos and principles of inner party democracy and to upload the copy of constitution and list of office bearers on their respective websites.

Others may consider this an open invitation to rebellious factions within established political parties, to follow the Shinde faction, and question the party leaders, as they can satisfy themselves that dissent within political parties will now have the EC’s blessings.