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.
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 organisation substantially financed, directly or indirectly by funds provided by the appropriate government”. Much turns on how one understands substantial funding.
POLITICAL PARTIES’ LIMITS
While the CIC, relying on precedent, held that substantial funding need not entail majority funding, it did not suggest that all instances of government funding would qualify as substantial 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, among other things. The income tax exemption itself means that 30 per cent of the income of political parties has been excused.
Unlike charitable organisations, this exemption is not conditional on the activities they pursue. It applies unconditionally. The CIC noted each of these factors while identifying whether the funding of political parties was substantial.
A second feature of the decision is the discussion on political parties. The Indian Constitution, after the Anti-Defection Amendment, is one of the few 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 behaviour of political parties? Countries regulate political parties in many ways and such regulation can involve limits on expenditures and contributions. The CIC’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. Serious electoral law reform must debate measures to ensure disclosure of financing, while respecting some private associational features of political parties. But the CIC could not have accommodated this concern; it only asked whether political parties are public authorities.
The move for electoral regulation is driven by the idea that, at some stage, campaign finance and political parties’ structure 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 CIC’s order is hard to seriously fault and highlights what is at stake in the unregulated universe of political parties.
CONSTITUTIONAL POSITION
On July 10, 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 sub-section 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 Apex 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 Articles 101 and 190 of the Constitution debar this approach by saying a seat becomes vacant the moment a member becomes “subject to any of the disqualifications”. Preventing a seat from becoming vacant would be unconstitutional.
PRINCIPLES Vs CONVENIENCE
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 grants exemption simply when one files an appeal, without any reflection on the merits of the conviction. The remedy that the court highlighted was 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 conviction of a sitting member would reduce the legislature’s strength and, in an age of narrow majorities, impact the government’s functioning. These policy-based arguments have little bearing on the key legal question of legislative competence.
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.
(The author is a Ph.D. candidate at the Department of Government, Harvard University.)
This article is by special arrangement with the Center for the Advanced Study of India, University of Pennsylvania.