Archive for September, 2011

Can undemocratic parties serve a democratic nation?

Posted on September 16, 2011. Filed under: Elections, Politics |

 Can undemocratic parties serve a

democratic nation?

Jagdeep S. Chhokar

The Indian ExpressFriday, September 16 2011

http://www.indianexpress.com/news/can-undemocratic-parties-serve-a-democratic-nation/847244/0

Suhas Palshikar (‘By the ballot alone’, IE, August 6) presented an elegant case against internal democracy in political parties. How persuasive, though, was it?

Professor Palshikar reminded us about the Congress’s attempt to elect its leader by an internal vote in 1966 and its aftermath, a “deep and long-running factional fight within the party leading to a split in 1969.” Lack of democratic spirit was in evidence as far back as 1939, when the elected president of the party, Subhas Bose, was expelled. The non-democratic Congress “System” may have been appropriate for a mass movement seeking independence from a colonial power. The inherent contradiction of undemocratic political parties in a democratic country arose only after the Constitution came into effect. The contradiction multiplies, as all political formations that have come into being subsequently continued to adopt the Congress “System” as the model for their internal functioning.

Prof Palshikar points out, rightly, that a real election for leadership brings the fissures out in the open. But the real question is: Is it better to hide fissures, and let members indulge in covert sabotage, or is it better to get things out in the open, face them, and deal with them — even at the cost of a split so that both parts can do whatever they want in a focused way?

The observation that “this predicament is common to any large party and raises difficult questions about running a mass-based party in a ‘democratic’ manner” is disturbing. It smacks of an elite bossing over the hoi polloi. Yes, the questions involved in running any large political party, mass-based or otherwise, are difficult but, as the saying goes “if you cannot stand the heat, don’t get into the kitchen.” Oligarchic political parties are a glaring inconsistency in a democracy.

Prof Palshikar also suggests “large parties do have something like internal democracy.” The key phrase here: “something like”. All MLAs “authorising” the high command to name a chief minister is “something like” democracy! A coterie or a family “running” a party is “something like” democracy!! What is the need to settle for “something like”? Why can’t we work towards a “real” democracy?

We are also warned that “knowing that the leadership issue will be settled not by mutual give-and-take or ‘consensus’, but by a vote, potential contenders will start strategising during the period of candidate selection and election campaign.” The implicit assumption that this does not happen now is untenable. Pretending that the contenders don’t strategise now is akin to saying “something like” democracy is democracy.

Another purported risk of internal democracy is that “even while we democratise the space called intra-party competition, it would lead to much more chaos and power-mongering than we currently experience.” Why not give internal democracy a chance before rejecting it as the greater of the two evils?

Another observation that invites comment: “The Congress party, which itself has been the architect of the consensus approach, caricatured and distorted it in the name of ‘high command’. But we need to keep aside that distortion and look at the innovativeness in not following the Western model for managing intra-party competition.” This so-called “distortion” is the reality. Yes, we can “keep aside” the reality, and keep congratulating ourselves and taking pride in “not following the Western model”, but that can only be done at a tremendous cost. We have seen some of these costs rather graphically over the last couple of years.

And let’s not forget, real inner-party democracy is not limited only to the election of leaders and thus only superficial, it actually means going all the way down, and decisions on choice of candidates within parties being taken by popular vote amongst party workers and members.

While the BJP may have attempted to take the credit for the secret ballot election of D.V. Sadananda Gowda to replace B.S. Yeddyurappa, it is clear as daylight to anyone who cares to see that democratic practice was as far away from BJP’s intentions as it can be. The suggestion that “this development portends the death of the idea of a party and the survival of factions engaged in a ‘democratic’ fight over competitive extraction of public resources” deserves serious consideration. It also raises perhaps the most critical question: Should we not also worry about the “death of the idea of a nation” even if the parties survive?

The writer is a former director of IIM-Ahmedabad and a founding member of the Association for Democratic Reforms


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House of Parties

Posted on September 15, 2011. Filed under: Elections, Politics |

House of Parties

Parliament has stopped speaking
for the people because the people’s
representatives now just represent
their political parties

Jagdeep S Chhokar
GovernanceNow | September 16-30, 2011


"The parliament has spoken. The will of
the parliament is the will of the people,”
so said a visibly relieved prime minister
in the evening on Saturday, August 27,
after both houses of parliament had
indicated the “sense of the house”, by
thumping of the desk, on three conditions
set by Anna Hazare for ending his fast
which would have entered the 13th day the
next morning.

The technicality of indicating a “sense
of the house” being significantly
different from “passing a resolution” is
not to be missed because Anna Hazare had
to fast an extra day while the
parliamentarians sorted this issue out.
The visible relief of the prime minister
was followed by an almost uncontrolled
outpouring of gratitude and encomiums
from a variety of sources, led by
the media. It seemed that parliament
speaking for the people or reflecting the
people’s will is like a rare celestial
event.

The questions that arise are: Should
it take a 74-year old man to fast for 12
days to get parliament to reflect the will
of the people? Should parliament reflect
the will of the people only (a) once in a
while, and (b) under the shadow of a
citizen dying in full public view and the
responsibility of that falling on
parliament?

The answers to both the questions are
obviously “no” but the questions need to
be raised simply because they reflect the
reality of the nation for the last couple
of decades.

Because the eternal optimists would
immediately say that this is a distorted
perception of reality since we have a
vibrant democracy which is a shining
example for the rest of the world, let us
take a couple of examples, one well known
and one not so.
What happened to CVC

The well known example is of the Central
Vigilance Commission. The CVC was set
up by the government in February 1964
on the recommendations of the Santhanam
committee, formally known as the
Committee on Prevention of Corruption,
headed by K Santhanam, to advise and
guide central government agencies in the
field of vigilance. The Santhanam committee
was set up by Lal Bahadur Shastri
in 1963 when he was the minister for
home affairs and Jawaharlal Nehru was
the prime minister.

The CVC came into prominence as a
result of the supreme court judgment
in what is popularly known as the Jain
Hawala case and is formally called the
Vineet Narain & others vs Union of India
& another case. The case was filed in
1993 (Case No.340-43 of 1993), and the
judgment was delivered on December 18,
1997 (1998: 1 SCC 22).

The importance of the judgment for the
CVC is that the supreme court directed
that “The CVC shall be given statutory
status”. To get a sense of the possible
real impact of this direction, it is
important to understand the background of
the case and its proceedings. That can be
best illustrated (though not really
captured in full) by reproducing two
sentences from the opening paragraph of
the judgment:

“These writ petitions under Article 32 of
the constitution of India brought in
public interest, to begin with, did not
appear to have the potential of escalating
to the dimensions they reached or to give
rise to several issues of considerable
significance to the implementation of rule
of  law, which they have, during their
progress. They began as yet another
complaint of inertia by the Central Bureau
of Investigation (CBI) in matters where
the accusation made was against high
dignitaries. … However, as the case
progressed, it required innovation of a
procedure within the constitutional scheme
of judicial review to permit intervention
by the court to find a solution to the
problem. This case has developed a
procedure within the discipline of law
for the conduct of such a proceeding in
similar situation. It has also generated
awareness of the need of probity in public
life and provided mode of enforcement
of accountability in public life.”

Following the above logic, the judgment
(written by the then Chief Justice of
India, Justice J S Verma, who headed the
bench which had Justices S P Bharucha and
S C Sen as members) did not confine itself
to the direction of giving the CVC a
statutory status, but went on to describe,
in some detail, what this status actually
meant and also detailed some of the
actions needed to make that happen.
To that end, the judgment went on to list
15 steps that needed to be taken to make
the statutory status a reality.

What did our parliament, of which the
political executive is a part, do in
response to the above judgment? It enacted
a new law called the Central Vigilance
Commission Act, 2003 (No. 45 of 2003). The
year, 2003, needs to be noted. The Act is
dated Friday, September 12, 2003, the date
of the judgment being December 18, 1997.
It took parliament, led by the government,
almost six years to frame and pass this
law, with the detailed guidelines being
already available from no less a legal
authority than the highest court in the
land!

And what did this law contain? While it
gave flesh and blood to the skeleton that
the judgment provided (though what the
court provided was certainly more than
a skeleton, it also provided the spirit
that was to be the underlying basis of the
law), made seemingly minor but subtle
changes even to the “letter of the law”
that the judgment provided. Sample the
following, picked almost, but not
completely, at random:

Para I(3) of the directions by the supreme
court reads as follows:

“The CVC shall be responsible for the
efficient functioning of the CBI. While
government shall remain answerable for the
CBI’s functioning, to introduce visible
objectivity in the mechanism to be
established for over-viewing the CBI’s
working, the CVC shall be entrusted with
the responsibility of superintendence over
the CBI’s functioning. The CBI shall
report to the CVC about cases taken up by
it for investigation; progress of
investigations; cases in which
chargesheets are filed and their progress.
The CVC shall review the progress of all
cases moved by the CBI for sanction of
prosecution of public servants which are
pending with competent authorities,
specially those in which sanction has been
delayed or refused” (Emphasis supplied).

Compare the emphasised sentence above
with Section 8(1)(f) of the Act.

“8 (1) The functions and powers of the
Commission shall be to –
…
(f) review the progress of applications
pending with the competent authorities
for sanction of prosecution under the
Prevention of Corruption Act, 1988;”

What happened to the special attention
that the judgment said should be paid to
those applications “in which sanction has
been delayed or refused”? One possible
explanation is that while the supreme
court recognised the existence of
instances where applications for sanction
for prosecution may be “delayed or
refused”, the Act, and by reason of having
passed the bill, parliament, seems to not
realise that such cases of delay or
refusal of permission for prosecution,
might even exist. That seems to be the
only rational explanation because to say
that the government omitted this
deliberately and parliament approved of it
knowingly might be construed as disrespect
to these hallowed institutions.

How the institution of the CVC has
been treated in practice is much too
well known to need elaboration. The
appointment of P J Thomas as
CV commissioner and its aftermath in the
supreme court is, hopefully, too recent to
be obliterated from public memory.

Benami transactions
The second example is of what are called
benami transactions. These got recognised
in the legal system in the country
as far back as 1882 when the courts took
cognisance of them under Sections 81
and 82 of the Indian Trusts Act.
Parliament, after Independence, acted
in 1976 and barred all suits in relation
to benami properties. Subsequently,
benami transactions were totally
prohibited, indulging in them was made an
offence, and all suits, claims, actions
based on benami transactions were
prohibited. But they just refused to go
away! Parliament acted again and repealed
Section 82 of Indian Trusts Act and
Section 281A of the Income Tax Act along
with consequential repeal.

Around this time the Law Commission of
India submitted its 57th report on all
aspects of the benami transactions and
made recommendations. The president,
obviously at the request of the cabinet,
promulgated the Benami Transaction
(Prohibition of the Right to Recover
Property) Ordinance, 1988, based on the
recommendations of the Law Commission.
When the ordinance did not have much
effect, the Law Commission was requested
to look at the issue again. Thus came
the 130th report of the Law Commission
titled ‘Benami Transactions – a Continuum’.
These recommendations of the Law
Commission formed the basis of what
came to be called the Benami Transactions
(Prohibition) Act, 1988.
The Act has not had any effect whatsoever
because even after 23 years of its
enactment, the rules for carrying out the
purposes of this Act have still not been
framed. Now, we have a new and possibly
“improved” Benami Transactions
(Prohibition) Bill, 2011, that was
introduced in parliament on
August 18, 2011. It is perfectly justified
to say that this is a laudable initiative
but what will happen to it in time to come
(Will it be passed? When? If passed, will
it be implemented?) is not really known.
Wasn’t the Lokpal bill first introduced
43 years ago?

The period since 1988 till today is
important to reflect on. There was a
parliament then, and there is a parliament
now. It is true that the onus of framing
rules for carrying out the purposes of an
Act is on the government of the day. Can
we thus blame the governments of various
hues that have come and gone since 1988
for not implementing the Act? Is it not
one of the functions of parliament to
oversee the functioning of the government?

What has happened in the last 20-30
years? It is sad and tragic to say but
parliament has stopped speaking for the
people. And why has that happened?
Because the people’s representatives do
not represent the people but they
represent their political parties. The
political parties have stopped performing
their standard function of being mediators
between the government of the day and the
people. Even the ruling party is, under
normal political functioning, supposed to
ensure that its own government, or a
government led by it, stays on track with
people’s aspirations. All that all our
political parties seem to be doing is to
try to win elections, at any cost and in
any way possible. And why is that?
Because their own internal functioning is
not democratic. But that is another story…

Chhokar (jchhokar@gmail.com) is former
professor, dean, and director in-charge of Indian
Institute of Management, Ahmedabad,
and a founding member of Association for
Democratic Reforms (www.adrindia.org) and
National Election Watch (NEW).



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More power to the people

Posted on September 6, 2011. Filed under: Elections, Politics |

More power to the people

Jagdeep S. Chhokar

GovernanceNow | September 1-15, 2011

The Anna Hazare phenomenon continues to
hold the nation in suspense and awe, as
this piece is being written. It is not
clear if Anna will fast for 15 or 21 or
some other number of days, and if he will
give up the fast only when the Jan Lokpal
Bill is passed by parliament or under
some other, yet to be decided, conditions.
There have been many interpretations of
the events of the last few months.
This piece presents yet another one.
The ire of the protesters and of those
who sympathise with and approve of the
“anti-corruption movement” is largely
directed against the “government” whom
they hold guilty of not agreeing to
introduce the Jan Lokpal Bill in
parliament and introducing the
“toothless” government bill. While this
is absolutely correct in as far as it
goes, since the government of the day is
charged with the responsibility and also
exercises the authority of deciding what
should, or can be, introduced in
parliament (with the exception of private
member bills which are hardly ever
passed), this is somewhat superficial.
It may be revealing to go a bit further
to see where does the government come from.

Obviously, the government is formed
by the political party or by a coalition
of political parties which have a majority
(or the largest number of members in the
Lok Sabha). The constitution says clearly
in Clause 3 of Article 75 that, “The
council of ministers shall be collectively
responsible to the house of the people.”
All ministers are therefore required to
be members of parliament. There is a
specific provision for this also in the
constitution, specified in Clause 5 of
Article 75: “A minister who for any
period of six consecutive months is not
a member of either house of parliament
shall at the expiration of that period
cease to be a minister.” Therefore, the
government, or at least the political
executive, is not only responsible to but
also comes out of parliament.
Going deeper still, where do members
of parliament come from? It is true that
we, the voters, elect them. But before we
can vote for them, they usually need the
endorsement of a political party to have
a reasonable chance of being elected in
what are nowadays very keenly contested
elections. It is therefore not incorrect
to say that the choices that voters can
make are influenced, actually controlled,
by the choices made by political parties.
We, thus, see that political parties make
the very first set of choices in the
formation of the government. If one were
to remove the intervening layers at least
in the description, it can be easily seen
that political parties form the government.
So, the ire directed only against the
“government” is somewhat, though not
fully, misdirected.
Large-scale corruption is a symptom of
some underlying malaises, and the proposed
Lokpal is one possible remedy, out
of a large range that is possible.
Its potential to treat the malaise is
obviously high but a lot will depend on
what kind of a Lokpal Bill is finally
enacted, and even more critically, how
that legislation is implemented. The list
of well-intentioned legislations
effectively killed due to deliberate
mal-implementation is much too long to be
presented here.

The fundamental issue underlying the
current struggle in India is the
distribution of power in society. As is
evident, the functioning of the country is
currently in the hands of the political
class, the bureaucracy, and big business.
It is these three sections of society
who actually decide, through a complex
web of inter-linkages – some deliberately
forged and some evolved over time, how the
country should be run. As is common in
such situations, there are common
interests cutting through the three groups,
some of which are obvious and visible, and
some are not only hidden from public view
but are also very difficult to discern and
extremely difficult to prove. The only
possible way to know these is to make
inferences by observing and analysing the
overt behaviour of these groups.
Despite the commonalities of some of their
vital interests, the most natural and
evident one of which is self-preservation,
there are clear differences amongst them,
primarily in their accountability. While
each business is accountable to its
shareholders or investors and the
bureaucracy is accountable to its
“appointing authority” which in the final
analysis is the president or the
constitution; the political class, or at
least those who are elected and are in a
position to legally influence government
policy, are accountable to the voters,
through the electoral process.
The key issue is what kind of power do,
or should, the elected representatives of
the people have. The elected ones seem to
be under the impression that once elected,
they acquire absolute authority, and can
do whatever they like, even if it is not
in the interest of the people and the
society at large. There are many instances
of this kind of “arrogance of the elected”
but it might suffice to mention just a
couple.

The most recent is a statement of the home
minister in parliament on August 17.
Newspaper reports have quoted
P Chidambaram as saying, “The people have
a right to vote us in and vote us out of
parliament but no right to make law. That
right has been given to us by the people.”
Being an accomplished lawyer, Chidambaram
cannot be faulted on the correctness of
the letter of what he has said but the
spirit of his statement is clearly
indicative of arrogance and haughtiness.
Chidambaram would do well to remember
that no right given by one person or group
to another is ever absolute, and that
there always are some basic norms
underlying such bestowal of rights or
power. The people give the right to make
laws to the members of parliament under
the implicit assumption that the laws
will be made in the spirit of the overall
good. If that assumption is violated,
then the implicit social contract becomes
weak. It is for all to see who has greater
responsibility of weakening the implicit
social contract of democracy in India –
the politicians or the people.

Another recent example was another
minister and eminent lawyer, Kapil Sibal,
lecturing in a press conference on what is
a fundamental right and what is not a
fundamental right, apparently on the
assumption that “the people” who have
given parliament the right to make laws,
do not understand complex issues such as
fundamental rights. While we must respect
Sibal’s view since he is an eminent
lawyer, he may need to be reminded that
this remains his individual opinion and
the final arbiter of what is a fundamental
right and what is not remains the supreme
court.

The above two examples are from the recent
events but this phenomenon of arrogance of
the elected, and their mistaken notion
that, once elected, they have absolute
and unfettered right to do whatever they
like, even if it is against larger
public interest, has been around for a
long time, albeit the principle of checks
and balances enshrined in the constitution
has often protected the people against
this. Here is an example from one of the
earlier governments.
The Delhi high court directed, in a
judgment on November 2, 2000
(in Association for Democratic Reforms
vs Union of India and Another, civil writ
petition no. 7257 of 1999), that
candidates contesting elections to
parliament and state assemblies should
file an affidavit, as a necessary part of
their nomination paper, giving details of
their criminal, financial, and
educational background. The judgment was
based on the voters’ right to know the
antecedents of the candidates in order to
make an informed choice while voting.
The Union of India went to the supreme
court in a special leave petition against
the Delhi high court judgment as if
disclosure of criminal, financial, and
educational background of candidates
contesting elections was not in public
interest. Several political parties became
parties to the appeal by filing
applications to become ‘interveners’ and
supported the stand taken by the Union of
India. Sibal, who now seems to enjoy
giving scholarly lectures to “the people”
on fundamental rights, used to appear for
the Congress, supporting the appeal filed
by the NDA government.

When the supreme court gave a judgment
rejecting the appeal (civil appeal
no.7178 of 2001, Union of India vs
Association For Democratic Reforms &
Another) on May 2, 2002, 22 political
parties met in an all-party meeting on
July 8, 2002, and decided that the
supreme court judgment will not be
allowed to be implemented, and if
necessary, the Representation of the
People Act will be amended in that very
session of parliament.
Seven days later, on July 15, 2002, a bill
to amend the Representation of the People
Act had been prepared to be introduced
and passed in that monsoon session
itself but it could not be introduced
as the Lok Sabha had to be adjourned
due to the petrol pump scam. The
government of the day was not deterred
and sent an ordinance to the president.
The president returned the ordinance but
the cabinet sent it to the president a
second time. Under the established
convention, the president had to sign the
ordinance, and the Representation of the
People Act stood amended. The ordinance
was later converted into an Act by the
same parliament that Chidambaram says has
the exclusive right to pass laws, and the
people cannot do anything once having
elected the members of parliament.
The ordinance, and the corresponding
Act, were subsequently challenged in
the supreme court in writ petition (civil)
No. 515 of 2002 (Association for
Democratic Reforms vs Union of India and
another), and in a judgment
on March 13, 2003, the supreme court
struck down the ordinance, and the
corresponding Act, as “unconstitutional,
null and void”. The law minister who,
if not initiated, at least approved,
if not directly, at least implicitly,
all these actions on the part of the
government since he was heading the law
ministry, was Arun Jaitley, the current
leader of the opposition in Rajya Sabha.
The reason for describing the last example
in some detail is to show that all
politicians, once elected, seem to acquire
a certain arrogance, brazenness, and a
sense of invincibility, forgetting that
the authority and power bestowed on them
by the electorate is time-bound and
limited by the implicit contract of a
democratic society, the most fundamental
fact of which is the supremacy of the
people.
This brings us back to the nexus between
the political class, the bureaucracy,
and big business, or at least a
significant portion of it. The latter two,
not being accountable to people at large,
can get away with their misadventures with
the shield of the political class but the
political class cannot get away for too
long. It has got away for several years
but the threshold of the people’s patience
seems to have been breached by the events
of the last few years. It is this
arrogance of the elected that makes
politicians say brazenly in television
discussions that they give ticket to
criminals during elections because other
parties also do that, because their
“winnability” is high, and because decent
people cannot win elections, a phenomenon
of which our current prime minister is a
sad example. It is also the same arrogance
that makes politicians say in open
discussions that people should not go
beyond a point in their agitations and
demands, and not underestimate the power
of the government. Such assertions of the
enormity of state power are not in
consonance with the fundamentals of
democracy.
How will the current imbroglio end?
I don’t think anyone knows. It is worth
noting that while all the parties in
opposition are united and vociferous in
supporting Anna Hazare’s right to protest,
not one of them has said that it supports
the Jan Lokpal Bill. Every single
political grouping is hedging its bets by
repeating ad nauseam that they are for a
strong Lokpal but not one of them has
done anything about it for 42 years, and
are obviously not willing to do anything
about it even now. All the opposition
parties seem to be interested in is to
enjoy the discomfort of the ruling
coalition and earn brownie points for the
next election.
Even in this dismal scenario, one hope is
that the political class will realise that
the brazenness and arrogance of the
elected has its limits, as does the
tolerance of the Indian people. The
agitation may fizzle out, there may or
may not be an effective Lokpal, but the
power that the people have tasted over
their elected representatives will not be
forgotten easily.

One way out is for the political parties
to move to a higher level of maturity and
balance partisan party interests with
national or broader people’s interests.
They cannot limit themselves to being
only framers and destroyers of
governments, but they have to also become
the protectors of national and people’s
interests, and if at times the latter
requires subordination of their partisan
interests, they need to learn to do that.
And one eminently sensible way to do that
is for political parties to become
functioning democracies in their internal
functioning, and stop being feudal
oligarchies they now are. The nation and
the society will continue to be in a
state of turmoil till political parties
learn these lessons and start practising
them. 
Chhokar is a former dean of Indian
Institute of Management, Ahmedabad, and
a founding member of Association for
Democratic Reforms and National Election
Watch.
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A law for law makers

Posted on September 6, 2011. Filed under: Elections, Politics |

A law for lawmakers 

Jagdeep S Chhokar GovernanceNow | August 16-31, 2011

Indian polity is in a state of flux. Almost all political formations are in the process of trying to deal with their internal demons, some more ferocious than the others. The phenomenon is so widespread that some commentators, and many politicians, have been raising the alarm that democracy, particularly parliamentary democracy, is under threat. Nothing can be farther from truth. Political activities are integral to democracy but they are neither the same nor do they perform the same function.   The three major manifestations of the crisis in the polity are: (a) the series of big ticket corruption scandals, (b) the Lokpal movement, and (c) three supreme court judgments (the black money judgment – Ram Jethmalani and others vs Union of India and others, writ petition (civil) no. 176 of 2009; the Salwa Judum – Nandini Sundar and others vs State of Chhattisgarh, writ petition no. 250 of 2007; and the Delhi Jal Board judgment – Delhi Jal Board vs National Campaign for Dignity and Rights of Sewerage and Allied Workers & others, civil appeal no. 5322 of 2011).   While these three, taken together, do represent a challenge to the political establishment to mend its ways by reforming itself, the fact that the political system has almost been forced to take note of people’s sentiment and has had to act, react or respond (depending on the perspective one takes) shows that democracy in India continues to function but in its own ways, not necessarily following any theoretically prescribed blueprint.   There is absolutely no doubt that Indian democracy will come out of this series of tests stronger than what it was earlier. It is in the same spirit of strengthening and deepening democracy in the country that the five preceding instalments in this series on electoral reforms have highlighted several aspects of our election system that need specific actions to make our democracy even more robust. The guiding philosophy behind these suggestions is that democracy is not a destination but a journey. No society can rest assuming that the best possible democracy has been achieved and we need not do anything more.   A recurrent theme in the preceding five instalments has been the functioning of political parties. Measures to improve the functioning of political parties do not have to be discovered anew. They have been suggested earlier but, sadly, have not resulted in any action. The reason is simple: it is the political parties that are authorised to take that action.

Instead of taking piecemeal action, the proposal for a comprehensive legislation for the regulation and functioning of political parties has been around for more than a decade. As we have seen in the earlier five instalments on various issues, the first comprehensive view on this was also taken by the law commission over 12 years ago, in 1999, in its 170th report titled ‘Reform of the Electoral Laws’ by making the following observations:   “On a consideration of the various views expressed in the four seminars aforesaid and the vast number of responses received by us, we have come to the conclusion that for successful implementation of any of the aforesaid proposals, or for that matter for bringing a sense of discipline and order into the working of our political system and in the conduct of elections, it is necessary to provide by law for the formation, functioning, income and expenditure and the internal working of the recognized political parties, both at the national and state levels…” (Emphasis added) (Para 3.1.1).
“With a view to introduce and ensure internal democracy in the functioning of political parties, to make their working transparent and open and to ensure that the political parties become effective instruments of achieving the constitutional goals set out in the preamble and parts III and IV of the constitution of India, it is necessary to regulate by law their formation and functioning. In this connection, reference can be had to the law laid down in the nine-judge constitution bench of the supreme court in S R Bommai v. Union of India (1994 (3) SCC1). Explaining the concept of secularism implicit in the constitutional provisions, the court made the following observations at page 236: “...inspired by the Indian tradition of tolerance and fraternity, for whose sake the greatest son of modern India, Mahatma Gandhi, laid down his life and seeking to redeem the promise of religious neutrality held forth by the Congress party, the founding fathers proceeded to create a state, secular in its outlook and egalitarian in its action... if any party or organisation seeks to fight the elections on the basis of plank which has the proximate effect of eroding the secular philosophy of the constitution it would certainly be guilty of following an unconstitutional course of action... if the constitution requires the state to be secular in thought and action, the same requirement attaches to political parties as well.” (Para 3.1.2).
“Conclusion: Keeping the aforesaid considerations in mind, we recommend that new part, part II-A, entitled ‘Organisation of Political Parties and matters incidental thereto’ be introduced/inserted in the Act, containing the under-mentioned sections:…” (Para 3.1.3)   What the law commission then went on to do was to give the actual draft for amendments to be made to the Representation of the People Act, 1951, by repealing its section 11 and 11B, and inserting section 11-A to 11-H, under part II-A of the Act, to be titled “Organisation of Political Parties and matters incidental thereto”. The draft prepared by the law commission can be accessed at the following: http://adrindia.org/files/Organisation%
20of%20Political%20Parties%20
and%20matters%20incidental%20
thereto_2nd%20august.pdf.

The next commission to comment of  this issue was the national commission to review the working of the constitution (NCRWC) in 2001. One of the first things the NCRWC did was to identify “some areas of immediate concern.” One of these was “Institutionalisation of political parties - need for a comprehensive legislation to regulate party activities, criteria for registration as a national or state party - derecognition of parties” (Para 4.29).
This was followed by a section titled  “Law for Political Parties” in which the NCRWC said the following:
“4.30.1 The commission recommends that there should be a comprehensive legislation [may be named as the Political Parties (Registration and Regulation) Act], regulating the registration and functioning of political parties or alliances of parties in India.   4.30.2 The proposed legislation should provide for compulsory registration for every political party or pre-poll alliance. It should lay down conditions for the constitution of a political party or alliance and for registration, recognition and de-registration and de-recognition.
4.30.3 The commission recommends that every political party or alliance should, in its memoranda of association, rules and regulations provide for its doors being open to all citizens irrespective of any distinctions of caste, community or the like. It should swear allegiance to the provisions of the constitution and to the sovereignty and integrity of the nation, regular elections at an interval of three years at its various levels of the party, reservation/representation of at least 30 percent of its organisational positions at various levels and the same percentage of party tickets for parliamentary and state legislature seats to women. Failure to do so should invite the penalty of the party losing recognition” (Emphasis added).

The second administrative reforms commission (ARC), in its fourth report, titled ‘Ethics in Governance’ (2007) makes a very incisive observation: “In the ultimate analysis, the state and a system of laws exist in order to enforce compliance and promote desirable behaviour. Therefore, enforcement of rule of law and deterrent punishment against corruption are critical to build an ethically sound society. A detailed analysis of our anti-corruption mechanisms and the causes of their failure is necessary in order to strengthen the forces of law and deter the corrupt public servants” (Emphasis added) (Para 1.11).
How can “desirable behaviour” among political parties be promoted in the absence of “any system of laws” concerning political parties? The above observation of ARC should alert the nation to the glaring gap in legislation, as a result of which there is no law governing the functioning of political parties in India, the need for which has been eloquently brought out by the recommendations of the law commission and the NCRWC, excerpted above.
While the need for comprehensive legislation for the functioning and regulation of political parties is established, the content of such legislation has not gone unattended.  A committee headed by the former chief justice of the supreme court of India, Justice M N Venkatachaliah, has drafted a bill to regulate the functioning of political parties. The draft of this bill can be accessed at the following: http://adrindia.org/files/Draft%20of%20
Political%20Parties%20(Registration%20
and%20Regulation%20of%20Affairs,%20
etc_)%20Act,%202011,2nd%20august.pdf.

Efforts to get socially desirable legislation enacted are in the limelight for the last few months. A lot of experience is now available on what to do and what not to do to get such legislation enacted. The importance of social action in bringing about social, legislative, and even judicial change cannot be overstated. That much maligned section of society, concerned citizenry or civil society will have to take the lead on this.   Chhokar is a former dean of Indian
Institute of Management, Ahmedabad, and a founding member of Association for Democratic Reforms and National Election Watch.
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Democracy by dictatorship

Posted on September 5, 2011. Filed under: Elections, Politics |

Democracy by dictatorship

Jagdeep S Chhokar
GovernanceNow | August 1-15, 2011
Democracy thrives everywhere inIndia
 – except in the headquarters of
political parties. Here, the word of
the High Command is law. Dissent is
death and democracy dies every day:
Fifth instalment of a six-part series
on electoral reforms

We, in India, often call ourselves a
vibrant democracy, and with good reason.
Vibrant our democracy most certainly is.
But is it also real or really effective?
The question may sound heretical but
it is worth pondering over. What raises
the question is the general belief that
just because we hold periodic elections
to parliament and state assemblies,
and occasionally to municipalities and
panchayats, it is proof enough that we
have a really effective democracy.
If mere holding of periodic elections
was enough for a healthy democracy to
exist, then what happened in Germany
during the Nazi regime would not have
happened since Hitler was first elected
seemingly legitimately. In a somewhat
similar vein, what a legitimately
elected government did in India
during 1975-77 also shows the fragility
of a democracy that relies only on
periodic elections without the
underlying democratic foundations.
What are these underlying democratic
foundations, and why are they important?
Being blinded by the hectic activity of
periodic elections, we have,
consistently for 60 years, overlooked
the fact that no electoral system can
function properly unless the underlying
political system in which it operates
is appropriate, just as a healthy
plant cannot grow and bear good fruit
unless the soil is properly prepared…
the fruit in this case being governance.
The point being that no electoral system
can provide real and effective
representation for the larger societal
aspirations unless the political system
underlying it is democratic in real
terms. What does the “political system
underlying” the electoral system consist
of? The answer is provided by the
National Commission to Review the Working
of the Constitution (NCRWC) in
its 2001 report. Para 4.25 of the report
says, “Political parties are an essential
concomitant of elections in a
representative parliamentary democracy.”
However, citing the expectations of the
founding fathers, the members of the
Constituent Assembly,the NCRWC goes on
to say that, “They (member of the
Constituent Assembly) expected that an
ideologically oriented healthy party
system would soon evolve in independent
India and that it would contribute to
societal integration, nation building
and strengthening the edifice of democracy.
Unfortunately, this did not happen.
The source of many of our troubles during
the post-independence period has been
our failure to evolve a healthy party
system based on a just and widely
acceptable political-economic national
agenda.” (Emphasis added) The NCRWC then
goes on to make avery incisive observation
in para 4.29 of their report: “Having
regard to the prevailing political
scenario in the country and the hard fact
that no electoral reforms can be effective
without reforms in the political party
system, the Commission identified the
following as some of the areas of
immediate concern:
Institutionalisation of political parties:
Need for a comprehensive legislation to
regulate party activities, criteria for
registration as a national or state party,
de-recognition of parties.

Structural and organisational reforms:
Party organisations – national, state and
local levels; inner party democracy–
regular party elections, recruitment of
party cadres, socialisation,development
and training, research,thinking and
policy planning activities ofthe party.

Party system and governance: Mechanisms to
make parties viable instruments of good
governance” (Emphasis added).

Deeper political reforms can be presented
in three interrelated but distinct parts:
registration and de-registration of
political parties, internal democracy
in political parties, and comprehensive
legislation for the regulation and
functioning of political parties. The first
two are discussed in this piece, and the
third, comprehensive legislation for the
regulation and functioning of political
parties, will be discussed in the next,
and last, instalment of this series on
electoral and political reforms.

Internal democracy: Internal democracy
in political parties is arguably the
single most critical and important
reform needed to make India a truly
democratic society. It is absolutely beyond
any doubt that political parties are
sine qua non of a representative democracy
that India has chosen for itself.The
critical issue is how do they function or
how should they function. While it would
be normally expected that political parties
which function in a democracy, and claim
to be defenders of democracy at every
opportunity, would function— in their own
internal workings—in a democratic manner
but that, as the NCRWC has observed,
“Unfortunately,... did not happen.” This
issue, internal democracy in political
parties, has attracted the attention of,
and drawn comments from, various
commissions. Views of the NCRWC have
already been mentioned. The most
comprehensive study and analysis of this
issue has been done by the 15th Law
Commission of India, as groundwork for
writing its 170th report that was titled
Reform of the Electoral Laws, submitted
in May of 1999.The Law Commission had
prepared a working paper on the issue
that was widely circulated. The Law
Commission received a lot of comments,
observations, and suggestions as a
result of the wide circulation.
The working paper was then discussed
in three regional seminars (at New Delhi,
Thiruvananthapuram, and Bangalore),
 followed by a national seminar, again
at New Delhi. Taking all the responses
and feedback into consideration,
the Law Commission wrote a complete
chapter (Chapter I of Part III) and
titled it “Necessity for providing law
relating to internal democracy
within political parties”. This is what
the Law Commission said, “On the parity
of the above reasoning, it must be said
that if democracy and accountability
constitute the core of our constitutional
system, the same concepts must also apply
to and bind the political parties
which are integral to parliamentary
democracy. It is the political parties
that form the government, man parliament
and run the governance of the country.
It is, therefore, necessary to introduce
internal democracy, financial transparency
and accountability in the working of the
political parties. A political party
which does not respect democratic
principles in its internal working
cannot be expected to respect those
principles in the governance of the
country. It cannot be dictatorship
internally and democratic in its
functioning outside” (Emphasis added)
(Para 3.1.2.1).
Though the Second Administrative Reforms
Commission (ARC) did not comment directly
on the need or otherwise of inner party
democracy, it did make some very
significant observations which can be
interpreted or from which inferences
can be drawn that have a bearing on
this issue. Para 1.9 of the ARC report
says, “A factor which increases corruption
is over-centralisation. The more remotely
power is exercised from the people,
the greater is the distance between
authority and accountability. The
large number of functionaries between the
citizen and final decision-makers makes
accountability diffused and the
temptation to abuse authority strong.
For a large democracy, India probably has
the smallest number of final decision
makers.” Lack of internal democracy
makes any organisation, and political
parties are not an exception here,
over-centralised. Also, in a party,
which does not have internal democracy,
power will be exercised more remotely
from the people (members of the party),
thereby increasing the distance between
authority and accountability. And, in
large political parties without internal
democracy, there will be very few decision
makers. As a matter of fact, it is no
secret that in an overwhelming number
of parties in India, there is usually
only one decision-maker. In a similar
vein, para 1.10 of the ARC report says,
“It is well recognised that every
democracy requires the empowerment 
of citizens in order to hold those in
authority to account.” It is a moot
pointas to in how many political parties
in India are ordinary members
(equivalent of “citizens” in a democracy)
empowered to hold the party leadership
to account. A very fundamental observation
is made in para 1.12 of the ARC report:
“Perhaps the most important determinant
of integrity of a society or the
prevalence of corruption is the quality
of politics. If politics attracts and
rewards men and women of integrity,
competence and passion for public good,
then the society is safe and integrity
is maintained. But if honesty is
incompatible with survival in politics,
and if public life attracts undesirable
and corrupt elements seeking private gain,
then abuse of authority and corruption
become the norm. In such a political
culture and climate, desirable initiatives
will not yield adequate dividends.
Competition and decentralisation
certainly reduce corruption in certain
sectors. But if the demand for corruption
is fuelled by inexhaustible appetite
for illegitimate funds in politics,
then other avenues of corruption will be
forcibly opened up. As a result, even as
corruption declines in certain areas, it
shifts to other, sometimes more dangerous,
areas in which competition cannot be
introduced and the state exercises a
 natural monopoly. What is needed with
liberalisation is corresponding political
and governance reform to alter the
incentives in politics and public office
and to promote integrity and ethical
conduct.” The ARC has done yeoman service
by highlighting the importance of “the
quality of politics”, the need for
“political reform”, and the need
“to alter the incentives in politics.”
Inner party democracy is a well-known
way of working towards all these three
laudable objectives.
It therefore stands to reason that
provisions need be made to introduce
inner party democracy within the
political parties, by law. This should
include mandatory secret ballot voting
for all elections for all inner party
posts and selection of candidates by the
registered members, overseen by
the Election Commission of India.

Registration and de-registration of
political parties:
An anomalous situation prevails that the
Election Commission has the power to
register political parties but does not
have the power to de-register them,
in case a situation arises that warrants
de-registration. This attracted the
attention of the NCRWC. In its report
of 2001, it explicitly said that,
“The authority for registration,
de-registration, recognition and
derecognition of parties and for
appointing the body of auditors
should be the Election Commission”
(Para 4.30.6). It goes on to say that
the decisions of the Election Commission
should be final subject to review only
by the Supreme Court, and only on points
of law.The proposal for giving the
Election Commission powers to de-register
political parties was first made by
the chief election commissioner in a
letter written to the law minister
on July 15, 1998. The Election Commission
reiterated the same in 2004, saying the
following: “Political parties are
registered with the Commission under
the provisions of Section 29A of the
Representation of the People Act, 1951.
The Section, as it stands, suffers from
certain looseness by which just about any
small group of persons, if they so desire,
can be registered as a political party,
by making a simple declaration under
Section 29A(5). This has resulted in
mushrooming and proliferation of a large
number of non-serious parties, which
causes a considerable systems load in
the management of elections. By way of
example, more than 650 parties are
presently registered with the Election
Commission, out of which only 150 or so
contested in the general elections of 1998.
The same trend was there in 1996 general
elections as well as in 1991 general
elections . Since the lay public is not
aware as to how easy it is to get a
political party registered with the
Election Commission, probably, the
motivation for the non-serious parties
to get registered is to give some sort
of a distorted aura of their status
and standing in their localities,
particularly in rural and mofussil areas.
The Commission feels that election is a
serious process and this tendency of
small groups of individuals, who have
no serious interest or desire to contest
elections, should not easily be allowed
to get the official stamp from the
Commission as active political parties.
“In addition to there not being
sufficient conditions under Section 29A
to deny registration to a political party,
the Section also suffers from a serious
infirmity that once registered,
a political party would stay registered
in perpetuity, even if, it does not
contest any election over decades of
its existence. This is because there
is no specific provision to de-register
a party. Similarly, certain political
parties, which have served their purpose
and have presently become defunct,
which is normal in the functioning
of a democracy, also stay on the rolls
of the Commission as functioning
political parties. It can readily be
seen that the state of affairs is not
a happy one. The Commission, therefore,
suggests that under the existing
Section 29A of the Representation of
the People Act, 1951, another clause
may be introduced authorising the
Election Commission to issue necessary
orders regulating registration and
de-registration of political parties”
(Emphasis added) (Part II,Para 7).
Another important electoral reform,
therefore, is to give the Election
Commission explicit powers to
de-register political parties.

Chhokar is former professor, dean,
and director in-charge of Indian
Institute of Management, Ahmedabad,
and a founding member of Association
for Democratic Reforms (www.adrindia.org)
and National Election Watch(NEW).
jchhokar@gmail.com
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    This blog contains Jagdeep S. Chhokar’s views, opinions, and comments on variety of issues.

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