Raghav Chadha and six MPs split with AAP underlines urgency of strengthening inner-party democracy

With people coming up with newer forms of subverting the constitutional order and innovative ways of avoiding defection, there is a need to seriously reconsider the way parties are organised

After several days of speculation about his future in the Aam Aadmi Party, Raghav Chadha announced that, along with him, a total of seven Rajya Sabha MPs of the AAP had “exercising the provisions of the Constitution of India,…merged with the BJP.”

This “merger” is the latest in a series of such actions in recent years taken by legislators from relatively smaller parties such as the BSP in Rajasthan and the AIMIM in Bihar, to the more notorious Shiv Sena and NCP “mergers” in Maharashtra.

Given this, the AAP is likely to file disqualification petitions against the MPs, and the chairperson is likely to take time to decide on those petitions. However, the fundamental question — whether the “merger” is valid or not — will continue to plague the Indian polity.

Lack of regulations in the internal functioning of political parties is the root of the problem. Solving this could help strike a balance between dissent within the party and constitutional morality.

The Election Commission of India (ECI) draws its power of “superintendence, direction and control of elections” from Article 324 of the Constitution. Parliament has accorded specific powers and duties to the ECI through (primarily) the Representation of People Act, 1950. The Act, through Section 29A, gives ECI the power to register political parties.

Further, the Supreme Court in Indian National Congress (I) vs Institute of Social Welfare & Ors (2002) made it clear that the ECI cannot deregister a party for violating the Constitution or for breaching the undertaking given to it at the time of registration. This makes the ECI a mere spectator to the violation of the core principles of the instruments that are the source of its existence and powers.

The Tenth Schedule to the Constitution does not allow a legislator to switch party loyalties by voting against party direction on the floor of the House or through actions outside the House. The political party can choose to condone the actions of a legislator in the case of the former. A defence — of two-thirds or more legislators in that House merging with any other party — is also available to the “defectors”.

The SC clarified a few points under the anti-defection law in Subhash Desai vs Principal Secretary, Governor of Maharashtra (2023). The Court drew a distinction between a political party and legislature party. As a result, after a close reading of the provisions of the Tenth Schedule, it concluded that only the political party can appoint the leader of the legislature group and the whip. This is important because in earlier cases related to the now non-existent “split” provision in the Tenth Schedule, courts have held that the split in the legislature party as per Paragraph 3 should be taken in the context of a split in the original political party. Without such evidence, the split in the legislature party would not be considered valid [Rajendra Singh Rana vs Swami Prasad Maurya (2007)]. Some have argued that the same logic should extend to the merger provisions, given the striking similarity in the words in both provisions.

In the current case, should this logic hold, the AAP as a political party has not — at least in the public domain — merged with the BJP. In fact, the AAP’s constitution has detailed provisions for “Merger Split and Dissolution”, which requires office-bearers and elected representatives across levels to participate in the process.

Several parties have attempted to make their constitution relevant and comprehensive. But the more fundamental question is: Do all parties have a constitution? Out of more than 2,500 registered parties, the Election Commission website shows the constitutions of 34 parties. In the present situation, there are no consequences for not having a constitution except the members leaving themselves vulnerable to the realpolitik of defections.

This conundrum can be solved by tweaking the law in two ways. First, a party constitution should be mandatory; one that lays down procedures beyond the existing requirement at the time of registration under Section 29A — outlining the role of the political party in relation to the legislature party (appointment of whip, etc.), removal and suspension of members, leadership challenges, and involvement of members in questions of leadership. Second, the ECI must be empowered to suspend registration or deregister a party on non-compliance with basic requirements.

This would help settle disputes within factions, including questions of leadership — as seen often in the UK — within a political party. Providing ways of expression of dissent and potential change of guard would protect a political party from breaking apart through subterfuge. An empowered ECI can ensure the enforcement of these rules to promote internal party democracy.

The 170th Law Commission Report, too, had recommended the addition of a Part IVC to the Representation of People Act to regulate the internal functioning of parties. A committee consisting of former judges, bureaucrats and lawyers had drafted the Political Parties (Registration and Regulation of Affairs) Bill for the same. The regulation of internal party democracy is not a novel idea, and can be implemented. It can be seen on a large scale in European countries. According to research by Ingrid van Biezen and Daniela Romée Piccio, out of the 21 countries, 12 require the role of members in leadership and seven provide the right to dissent and have an internal arbitration body. The regulation of internal party democracy is not a novel idea, and it can be implemented.

Although the ECI is empowered to decide on disputes within factions of a party, it is a lengthy quasi-judicial process that relies on an institution external to the political party to enter the domain of what is essentially a leadership question. This is because most of the political parties run as individual or family-led enterprises; there is no imagination of parties as institutions. Hence, the reluctance to introduce robust forms of internal democracy within parties.

With people coming up with newer forms of subverting the constitutional order and innovative ways of avoiding defection, there is a need to seriously reconsider the way parties are organised. Requiring internal party democracy could be a serious first step on that path.

Sughosh Joshi is a recent graduate of IIM Ahmedabad. Views are personal