Hindu Business Line:
Opinion: Tuesday, July 30, 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.
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.
Madhav
Khosla:
(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.
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