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The Law of Indian Democracy

Madhav Khosla
July 29, 2013

Deciding how to put the abstract democratic ideal into practice isn’t easy. Some decisions are large institutional ones, such as whether a country should opt for parliamentarianism; others are more microscopic – how electoral districts should be mapped, how electoral speech should be regulated, and so forth. The specific institutionalization of the democratic ideal can radically impact its functioning and even threaten the ideal itself. While India has managed non-partisan election administration reasonably well, other features of the system are poorly regulated and understood. Two recent judicial decisions have brought the principles that govern Indian democracy into sharp focus.

The first, delivered by the Central Information Commission (CIC), held that political parties were public authorities under the Right to Information Act (RTI) 2005. Under Section 2(h)(d)(ii), a public authority is a “non-governmental organization substantially financed, directly or indirectly by funds provided by the appropriate government.” Much turns on how one understands substantial funding. While the Commission, relying on precedent, held that substantially funding need not entail majority funding, it did not suggest that all instances of government funding, however partial, would qualify as substantially funding. In the case of political parties, government funding included the allotment of large parts of land in Central Delhi, the allotment of houses on rental basis on concessional rates, the complete exemption of income tax, free airtime on state radio and television, etc. The income tax exemption itself means that thirty percent of the income of political parties has been excused. Unlike charitable organizations, this exemption is not conditional on the activities they pursue. It applies unconditionally. The Commission noted each of these factors while identifying whether the funding of political parties was substantial.

A second feature of the decision is its discussion of political parties. In modern democracies, voters enter politics through political parties; they are the vehicle for such integration. In India, political parties are all the more significant. The Constitution, after the Anti-Defection Amendment, is one of the very few constitutions to explicitly take note of political parties. Political parties bind legislators and provide for their disqualification under Schedule Ten of the document. Given this unique power, it is hard to make an argument that a political party in India is an entirely private association, subject only to its internal codes of conduct.

Does the order limit the behavior of political parties? Countries regulate political parties in many ways and such regulation can involve limits on expenditures and contributions. The Commission’s order places no limits of any kind. It merely asks for disclosure on sources of revenue and use of resources. Undoubtedly, bringing political parties under the ambit of the RTI Act might invite some scrutiny of internal deliberations. Serous electoral law reform must debate measures to ensure disclosure of financing while respecting some private associational features of political parties. But the Commission could not have accommodated this concern; it only asked whether political parties are public authorities. The implications that follow are those contained in the statute. The move for electoral regulation is driven by the idea that, at some stage, campaign finance and political parties structuring will violate the principles of free and fair elections. The RTI Act might not be our best answer, and perhaps the same is true for judicial control. But, on its own internal terms, the Commission’s order is hard to seriously fault and highlights what is at stake in the unregulated universe of political parties.

On July 10th, only a month later, the Supreme Court asked a very different question: is it constitutional for a sitting legislator to remain in office if, after becoming disqualified because of a criminal conviction, he files an appeal against the conviction? The impugned provision, Section 8(4) of the Representation of the People Act 1951, stated that “a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.”

At the heart of this matter lay the question of whether the qualifications for a person to be elected as a legislator could be different from those to continue as one. This question posed little textual trouble. Articles 102 and 191 of the Constitution explicitly prohibit this differential treatment. As the Court put it, “if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature.” The impugned provision was beyond Parliament’s legislative competence, given the Constitution’s clear requirement that one law governs both sitting members and aspiring ones. The state ingeniously argued that it was not setting different standards for disqualifications; the provision merely ensured that disqualifications for the latter would not take effect. But this indirect route gets to the same destination; more importantly, it too is explicitly barred, by Articles 101 and 190 of the Constitution, under which a seat becomes vacant the moment a member becomes “subject to any of the disqualifications.” Preventing a seat from becoming vacant would be unconstitutional.

Will convicted members be without any remedy? This is hardly so. The disqualification does not apply if the member can get an order staying the conviction, as per the Code of Criminal Procedure. In such a scenario, the person can continue as a member. This remedy, however, at least makes some appeal to the merits of the case. A blanket provision, like the one struck down, grants exemption simply when one files an appeal, without any reflection on the merits of the conviction. The remedy that the Court highlighted was neither this arbitrary one nor one which involved a mere stay on the sentence, which is a rather formal affair, but rather a stay on the conviction itself.

Articles 102 and 191 intend to lay down the baseline criteria necessary to be a suitable representative. The considerations involved relate to the character and responsibility of legislating, which apply equally regardless of whether one is seeking to be elected to the legislature or already is a legislator. Sitting members cannot be treated as special creatures, making laws that benefit themselves. In a moment of desperation, the state argued that the provision was necessary because the conviction of a sitting member would reduce the legislature’s strength and, in an age of narrow majorities, impact the government’s functioning. Furthermore, a bye-election would ensue and, if the conviction is reversed, this process would have been futile. These policy-based arguments have little bearing on the key legal question of legislative competence. But there is no doubt that being convicted of a crime and failing to get a stay on the conviction can be an inconvenient affair. The law of democracy doesn’t aim at making matters smooth: it aims at ensuring that the abstract idea of one person, one vote finds articulation in the most particular of circumstances.

Madhav Khosla is a Ph.D. candidate at the Department of Government, Harvard University.

India in Transition (IiT) is published by the Center for the Advanced Study of India (CASI) of the University of Pennsylvania and partially funded by the Nand and Jeet Khemka Foundation. All viewpoints, positions, and conclusions expressed in IiT are solely those of the author(s) and not specifically those of CASI and the Khemka Foundation.

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