Disqualification of Political Parties – Need for Clarification

INTRODUCTION

Political parties are indispensable to any democratic system   and play the most crucial role in the electoral process – in setting up candidates and conducting election campaigns.  In recent years, we have been witnessing a succession  of unstable governments, and  the reason  for such a recurring phenomenon  is said to be the archaic and chaotic  functioning of political parties. Alliances and coalitions are made, broken and changed at whim, and the balance of power seems to be held not by those at the Union level, but by minor parties on the fringes.  There is no  doubt  that Indian political parties have fragmented over the years. Frequent party splits, mergers and counter splits have dramatically increased the number of parties that now contest elections. In 1952, 74 parties contested elections, whilst in recent years this number has swollen to more than 177, and  has been consistently increasing since 1989.[1] Political parties and the party system in India have been greatly influenced by cultural diversity, social, ethnic, caste, community and religious pluralism, traditions of the nationalist movement, contrasting style of party leadership, and clashing ideological perspectives.

The National parties are Indian National  Congress ,  Bharatiya Janata Party, Communist Party of India, Communist Party of India (Marxist), Bahujan Samaj Party, and Janata Dal.  As per the latest notification (June 29, 2000) the Election Commission has decided to de-recognize  seven regional parties in some Sates based on their poll performance.  These are Haryana Vikas Party, NTR-TDP (Lakshmi Parvati), Rashtriya Janata Dal in Manipur, Shiv Sena in Dadar, Nagar and Haveli, United Minority Party in Assam, Samajwadi Janata Party in Chandigarh and  Samta Party in Haryana. Meanwhile, the CPI (M) and the Republican Party of India have been served notices of de-recognition.

The Constitutional Position of Political Parties in India

The legal and  constitutional position of political parties varies from country to country. In most democratic countries, however, there is neither any direct constitutional provision regulating the functioning of political parties, nor any legal sanction establishing political parties as a necessary governmental institution,  although  there are  some governmental systems which try to prescribe some conditions for the operation of party system a very good example is furnished by the Constitution of the Fifth French Republic, which prescribes that Parliament (The French National Assembly) cannot make a law that may abridge the right of the political parties to carry on their activities freely. Similarly, the basic law of  Germany’s Constitution includes political parties in its purview.

Political parties  do not as such find any direct mention in the Constitution of India. However, there is  one  provision in the Constitution which is directly relevant to the functioning of political parties: the Tenth Schedule. The Tenth Schedule of the Constitution was added by the Constitution (Fifty-second Amendment) Act, 1985. It deals with the disqualification of a person for being a member of either House of Parliament [Art. 102(2)] or the Legislative Assembly or Legislative Council of a State [Art.191(2)], on ground of defection.

In the absence of a sufficiently detailed constitutional provisions, the major onus of framing and administering the rules and regulations governing political parties in India has fallen on the Election Commission, a constitutional body responsible for conduct of elections. The Election Commission of India has the ultimate power to accord recognition and status of political parties to “the association or body of citizens of India”. The Election Commission has the power to decide whether or not to register an association or body of individuals as a political party.

According to s.29A it is mandatory for any association or body of individuals of India calling itself a political party to make an application to the Election Commission for its registration as a political party, within thirty days following the date of its formation. Section 29A (5) requires that the application shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity and unity of India.

The recognized political parties are accorded the status of a National or State political party in accordance with the provisions of Election Symbols (Reservation and Allotment) Order, 1968 as amended from time to time. The number of National parties has been varying from 14 to 4 owing to continuous review of the status based on the performance of the parties. In 1951 there were 14 National parties while presently there are 7 National political parties.

De-recognition of Parties

Section 29A of the Representation of  the people Act, 1951 makes it mandatory for the political parties to provide specifically in their constitutions that they bear true faith and allegiance to the principles of secularism, socialism, and democracy besides to the Constitution of India, to gain registration by the Election Commission.  However, the sanctity of the provision is diluted by the fact that the parties who do not subscribe to secularism, socialism and democracy would be denied registration but they can contest election.  Also the Election Commission has held that a political party duly registered under the Representation of the People Act, 1951 cannot be de-registered by the Commission on the allegation that the party had violated the law or has ceased to function in accordance with the undertaking that it would abide by the principles of secularism.  The only case where the Commission could de-register a party was when it was found later that a party had obtained, through fraudulent means its registration or it was declared by the Government as unlawful.

The Full Bench of the Kerala High Court in Bharat Kumar K. Palicha v. State of Kerala[2] after explaining the meaning of the word ‘Bundh’ and its effect, declared that the Bundh is unconstitutional and no political party or person has any right to call and organize such Bundh.

The Supreme Court in Communist Party of India (Marxist) v. Bharat Kumar[3] covers the situation in favour of the petitioners in that no party or organization or association can claim a right to compel another to participate in a hartal which it has called. There cannot therefore be any difficulty in holding that the enforcement of a call for hartal by force, intimidation and coercion would also be: an act in itself unconstitutional.”

The Apex Court affirmed the directions except directions  regarding cancellations of registration of political parties in the decision reported in Indian National Congress v. Institute of Social Welfare and Ors.[4]

CONCLUSION

Ironically, the cure for India’s governance problems will be more rather than less democratic. Many of the bottlenecks it faces in development can be directly traced to institutional devices that impede the process of democratic negotiation. The best example of this is India’s party system, which is characterized by the following features: India has a large number of political parties. While these parties give many sections of the population voice in the political system, they impede the process of democratic negotiation. They have no clear rules of recruitment, nomination or contestation. They are very oligarchic structures in which a few people control the finances, the agenda setting power, and the choice of personal selection within parties.

But it is precisely this ability to negotiate with a million contending interests that gives India enormous depth, resilience and stability, even if the pace of change is somewhat slower. India’s pluralism, an ability to negotiate across all kinds of cultural divides; and its democracy that allows for an openness and gradual accommodation may yet prove to be its greatest strengths rather than weaknesses. The key to its future prosperity will lie in serious institutional reform. Even if the unfolding story of India’s rise is slow, it is sure footed and robust.


[1] National Commission to review the working of the Constituion.

[2] AIR 1997 Ker 291

[3] 1977 (2) KLT 1007 , AIR 1998 SC 184.

[4] 2002 (2) KLT 548 : (2002) 5 SCC 685.

 

Article by-

Ritwik Sneha

Student, Amity Law School

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

By Competition2011 on May 27, 2011 · Posted in Governance and Democracy

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