Political parties cannot be law unto themselves

Weeks before the 2024 parliamentary elections, the Supreme Court pronounced two important judgements: 1. Scrapping the Electoral Bonds Scheme of anonymous donations to political parties, which was introduced in 2018; and, 2. That lawmakers do not enjoy parliamentary immunity under Articles 105(2) and 194(2) for acts of bribery, overturning the top court’s decision of 1998 in P V Narasimha Rao Vs State, which had held that lawmakers enjoyed immunity from prosecution for accepting bribes to vote in Parliament or Assembly. Both these decisions have been welcomed by most people. 

Will these decisions lead to some reforms in bringing transparency and accountability in the funding of political parties and in deterring elected representatives from indulging in bribery while discharging their responsibilities as legislators? I don’t think so. However, the silver-lining is that these decisions give us hope that the judiciary is likely to support all such measures which may be introduced by any enlightened government to reform the political parties and their functioning. 

It is heartening to see that the scrapping of the Electoral Bonds scheme by the Supreme Court has generated considerable public debate and there is now greater awareness about the need to bring transparency and accountability among political parties and the donors funding them. It is also evident from the information which is now in the public domain that the political parties ruling at the Centre and in the states received maximum donations via Electoral Bonds. The amount of donation received by the different political parties seems to have some relationship to their power to dish out benefits to their donors. We are going to see a lot of debate on this issue for some time. 

Political parties are the very foundation of any democracy as their elected representatives run the affairs of the State. They also contributed substantially to the framing of our Constitution. But surprisingly, we do not find any mention of political parties in the Constitution. When asked about it, B R Ambedkar, in his concluding remarks before the Constituent Assembly of India, opined that:

“The Constitution can provide only the organs of State, such as the Legislature, the Executive, and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.” It is evident from this that the framers of our Constitution were clear that it was up to the people and the political parties they set up as their instruments to carry out their wishes and their politics. I don’t think they expected that, with time, the political landscape will change so drastically as we see it today. 

Let me briefly address the basic question about the status of political parties under the law. Going by the views expressed by Ambedkar that political parties are not organs of the State and so were not included in the Constitution, one can argue that the mention of the Election Commission of India in the Constitution is meaningful only if there are political parties. Moreover, the role of political parties in any democracy is of greater importance than that of the Election Commission as it is the elected representatives from the parties that run the affairs of the State.  Therefore, political parties should have found a mention in our Constitution. 

The related question is whether it is in the interest of democracy to bring the political parties under some kind of regulation like every other institution, small or big, which are regulated by the State, particularly since they get considerable benefits from the State, such as tax benefits, special window for raising funds, free or at concessional rates land for their offices, etc. No other non-government institution gets such benefits, yet they all have to function in accordance with the rules and regulations framed by the State. The lack of any regulation, coupled with the benefits, has resulted in the mushrooming of political parties. We have currently over 2,600 political parties in India.

Most of the political parties are run as private entities. Some parties are blatantly non-secular. They also use money and muscle power during elections. Many of them have a large number of members with criminal backgrounds. Surely, we want our political parties to observe internal democracy in their own functioning. They should also observe transparency and should be accountable to the public. We can only then hope that they will give us a clean government. 

I wonder if the lawmakers will ever agree to bring political parties under any kind of regulation. They will unite to protect their turf whenever any effort is made by any institution to subject them to any kind of discipline. They were declared as public institutions by the Central Information Commission in its judgement of June 2013, and therefore as being under the purview of the Right To Information Act. The political parties challenged this in the Supreme Court, and there the matter rests. 

It is time that the political system is reformed if we are to become a truly democratic country. Now is also the opportunity when public opinion and the judiciary appear to be in favour of political reforms. We would like to see the central government introduce comprehensive reforms in the political system while formulating a new system of funding for the political parties. Political parties deserve to find a mention in the Constitution and their registration and all aspects of their functioning must be regulated by a constitutional body similar to the Election Commission of India, which may be named as the Central Commission for Political Parties. The Election Commission of India should be entrusted with the task of holding elections only. A separate central legislation similar to the Representation of People Act must lay down the role and functioning of the Central Commission for Political Parties. I am sure the concerns of the political parties regarding certain aspects of their functioning could be suitably taken care of in the proposed legislation. In the meantime, political parties should be treated as political associations and regulated like other associations.  

No one can deny the importance of political parties in a democracy. They not only need to be supported and nurtured but should also be regulated by the State. I hope this aspect is debated widely, along with the current debate on finding a more transparent mode of funding political parties. 

(The writer is a former IAS officer)