The Wire: New Delhi: Wednesday, January 10, 2018.
Political
parties are often able to exercise supreme power with impunity, even while
blatantly defying statutory authorities.
The first
response that comes to mind might be that “We, the People” are sovereign
because the preamble to the constitution opens with these words. But do “We,
the People” actually exercise ‘supreme power or authority’? In theory, yes, we
do that every five years when we choose our representatives to sit in
parliament. These MPs then support or oppose proposed legislations in
accordance with the whips or other instructions issued by the political parties
on whose tickets they got elected.
The second
possible response is an argument that is often heard: “parliament is supreme”.
This is sometimes contested by saying that while the parliament can make laws,
the laws are subject to judicial review since the constitutionality of those
laws is finally decided by the Supreme Court. Even if it is accepted that
parliament is supreme, it is worth trying to understand exactly how parliament
works. The phenomenon of parliament being paralysed is so familiar that it does
not need elaboration. Disruption has been a regular feature of every session of
the parliament over the last five or six years. I also wrote a piece on it in
2012.
Who disrupts
parliament is not a mystery. It’s the political parties. There have been
instances when the leader(s) of one or more political party(ies) announce(s) in
the evening that they would not allow parliament to function the next day. And
they actually carry out their intention, and get away with it. The question
then arises whether parliament is sovereign or political parties are sovereign.
Is the
judiciary sovereign? The number of instances when the parliament (read
political parties) has frustrated the decisions of the higher judiciary is
legion. A couple of examples should prove the point.
When the
Supreme Court ordered disclosure of pending criminal cases by candidates
contesting elections to parliament and state assemblies in the Association for
Democratic Reforms (2002) case, parliament unanimously (meaning all political
parties) supported the move to amend the Representation of the People Act to
prevent the judgment from being implemented. It was only when the Supreme Court
declared the amendment unconstitutional on appeal in 2003 that the disclosures
became a requirement.
In 2014, the
Delhi high court held the BJP and the Congress guilty of having violated the
Foreign Contributions Regulation Act and directed the Union of India to “take
action as contemplated by law…within a period of six months from date of
receipt of certified copy of the present decision”. No action has been taken
till date and a contempt petition is pending in the high court on this issue.
This is an example of political parties being able to frustrate decisions of
the higher judiciary.
Arguably the
most glaring instance of political parties being able to exercise ‘supreme
power or authority’ even by blatantly defying statutory authorities is that of
the attempts to apply the Right to Information Act (RTI Act) to political
parties. The highest statutory authority in the country for the implementation
of the RTI Act, the Central Information Commission (CIC), decided in a
full-bench decision in June 2013 that six national political parties satisfied
all the four conditions as mentioned in Section 2(H) of the RTI Act, and are
therefore public authorities under the Act.
All the six
parties refused to comply with this decision of the CIC. When a complaint of
non-compliance of its decision was lodged with the CIC, it issued several
notices to the six parties, including show cause notices, but all the parties
just ignored the notices and did not even deign to respond. The CIC then in a
written decision in March 2015 said that it was “bereft of the tools to get its
orders complied with”. A petition has since been filed in the Supreme Court to
get the “final and binding” order of the CIC implemented. It is still pending.
What does the
above show? That political parties, through the influence they exercise on MPs
and MLAs, are able to defy the law of the land with impunity.
To answer the
question ‘Who is sovereign in India?’ let us go back to the dictionary. It
describes ‘sovereign’ as “Group or body of persons or a state having sovereign
authority” (italics added). ‘Sovereign authority’, as we already know is
‘supreme power or authority’.
So, which is
that ‘group or body of persons’ who can defy the law of the land with impunity,
and consequently exercise ‘supreme power or authority’? Isn’t the answer
obvious?
Why do we
need to answer this question? Because the finance minister says that the
“donors (are) reluctant to disclose the details of the quantum of donation
given to a political party… because they fear consequences visiting them from
political opponents”. This is what is commonly referred to as political
vendetta.
As a society,
we are not able to ensure that our political parties do not engage in political
vendetta (because they are sovereign), so we have to keep experimenting with
all types of complicated instruments such as electoral trusts and electoral
bonds in order to deal with the ill-effects of the misbehaviour of political
parties. The use of unaccounted money is just one such misbehaviour.
The finance
minister is honest enough to say, “I do believe that donations made online or
through cheques remain an ideal method of donating to political parties.” But
he also says that “these have not become very popular in India since they
involve disclosure of donor’s identity”.
What he does
not disclose is why a law can’t be passed which requires all political parties
to forbid all political parties from receiving all donation by all means other
than digital ones (remember the full-page advertisements in all newspapers in
the period following demonetisation exhorting all citizens to make all payments
by digital means)?
The reason is
that political parties are sovereign.
(Jagdeep S.
Chhokar is a former professor, dean and director-in-charge of IIM, Ahmedabad.
Views are personal.)
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