A Surya Prakash
For long years, it has been recognised that a major lacuna in our democratic process is the haphazard growth of political parties and the absence of a basic law to govern them. Strange as it may seem, although we are the largest and most vibrant democracy in the world with a staggering 814 million electors, barring exceptions, there is hardly any internal democracy within political parties and a majority of them virtually function like private limited companies owned and tightly controlled by political families.
The absence of internal democracy within political parties is, therefore, the greatest irony in democratic India and many jurists and thinkers and national commissions have repeatedly drawn the attention of the political class to set this right, but because of the mushroom growth of regional parties and their impact on the composition of the two Houses of Parliament, there has not been much movement on this front.
For example, in 1999, the Law Commission suggested regulation of political parties to ensure inner party democracy, transparency in regard to flow of funds etc. It said the Representation of the People Act should be amended to deal with these issues. Significantly, it observed that a political party “cannot be a dictatorship internally, and democratic in its functioning outside”. The National Commission to Review the Working of the Constitution, headed by former Chief Justice MN Venkatachaliah had noted that unless the political party system was reformed, there could be no electoral reforms worth the name. This commission said there was a need for a comprehensive legislation to regulate political parties and to deal with issues such as registration of political parties as national and State parties and their de-recognition. It said there was need to pay attention to inner party democracy, ensure regular party elections, training of party cadres etc. Further, it said political parties should be instruments of good governance.
The Law Commission analysed the laws governing political parties in Germany, Portugal and Spain in its 255th Report on Electoral Reforms. It had the following observations to make: In Germany, Article 21 of the Constitution deals with regulation of political parties. It says that political parties shall participate in the formation of the political will of the people and that they may be freely established. However, their internal organisation must conform to democratic principles and they must publicly account for their assets and for the sources of their funds. Significantly, because of Germany’s tryst with dictatorship in the first half of the 20th century, the second part of this Article says that parties which “by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality”. These provisions have been backed up by a law to regulate political parties.
Analysing the laws governing political parties, the Law Commission said that Germany regulates parties both for its unconstitutional actions and unconstitutional aims which have not been put to action. The Constitutional Court has exercised its power to declare parties unconstitutional on two occasions when it banned the neo-Nazi Socialist Imperial Party in 1952 and the German Communist Party in 1956. Banning the Communist party, the court had said that it could deny the advancement of an idea that violated the principle of individual dignity, “even if such an idea had popular support”. It said those who are called upon to participate in the formation of the political will “must be unanimous in their affirmation of the basic values of the Constitution”.
In Portugal too, political parties are regulated by the Constitution. Here the Constitution prohibits political parties which have a regional or religious objective. It also expects political parties to have internal democracy. The Constitution says that democratic parties must be governed by the principles of democratic transparency, organisation and management, and participation of all members. Here too the courts can abolish political parties that violate these Constitutional principles.
The Law Commission has noted that unlike Germany and Portugal, “Spain only regulates the action of its political parties, not their aims or intentions. The Constitution says the creation and activities of political parties are free in so far as they respect the Constitution and the law. “Their internal structure and their functioning must be democratic”. The law dealing with political parties States that elections to governing bodies of political parties must be by secret ballot and democratically controlled.