Report No. 255
B. Laws Regulating Internal Democracy
3.9. Currently, there is no express provision for internal democratic regulation of political parties in India and the only governing law is provided by Section 29A of the RP Act, which provides for registration of political parties with the ECI. Section 29A(5) provides for every application to the ECI to be accompanied by a copy of the party memorandum or regulations, with a specific provision "that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India."
3.10. The ECI in its "Guidelines and Application Format for the Registration of Political Parties under Section 29A", states that the party application should be accompanied, inter alia, by the following documents/information:
"(i) Party Constitution drawn on following lines:
Article IV: Organs of the Party (Organizational Structure): Powers and Functions of each of these organs (Decision making power should reflect democratic spiri.- no veto power)
Method of appointment (and terms) of members to each of these organs (Not more than 1/3rd members can be nominated; Tenure should be fixed not exceeding 5 years; Periodic elections within 5 years maximum)
Article V: Office-bearers of the Party: Powers and functions of each of these office-bearers (Decision making power should reflect democratic spiri.- no veto power)
Method of appointment (and terms) of each of these office-bearers
(Should be elected; Not more than 1/3rd can be nominated; Fixed tenure not exceeding 5 years for everyone; Periodic elections within 5 years maximum)
(v) There should be a specific provision in the rules/Constitution of the party regarding internal democracy in the party, organisational elections at different levels, mode of such elections and the periodicity of such elections, term of office of the office-bearers and powers and duties of the office-bearers of the party, and the various representative bodies of the party (such as Executive Committee, Council etc.)
(xxi) The applicant party must ensure in its constitution itself vide a specific clause in the party constitution that party will hold periodic (Period to be specified in constitution but at least once in 4 years) and regular election to all positions of office-bearers and organs of the party." [Emphasis supplied]138
138. ECI, Guidelines and Application Format for Registration of Political Parties under Section 29A,
3.11. Unfortunately, the aforesaid guidelines are silent on candidate selection, apply only to the registration of new parties, and do not regulate the internal functioning of already registered parties. Moreover, the ECI's power to require parties to hold regular internal elections for office bearers, and candidate selection is compromised in the absence of any penal provisions.
The Supreme Court in Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 made it clear that neither Section 29A of the RP Act, nor the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 empowered the ECI to de-register parties on the grounds of violating the Constitution or breaching the undertaking given to it at the time of registration.
3.12. Consequently, there is no mechanism to review a party's practice against the principles enshrined in the Constitution or against the requirements of the ECI's Guidelines and Application Format for the Registration of Political Parties under Section 29A. A party can only be deregistered if its registration was obtained by fraud; if it is declared illegal by the Central Government; or if a party amends its internal Constitution and notified the ECI that it can no longer abide by the Indian Constitution.140
Moreover, there is no power of de-registration if parties having registered under section 29A of the RPA continue to avail of tax benefits under section 13A of the IT Act, without contesting elections. The RPA thus needs to be amended to empower the ECI to act.
140. ECI Guidelines, supra note 138
3.13. Even otherwise, these situations only deal with cases of deregistration, and not disbarment of any party from contesting elections. It is clear that any party can contest elections, even if their Constitution contravenes the provisions and ideals of the Constitution or does not provide for internal elections. The need for reform is thus evident, and it is useful at this stage to briefly examine the law and practice in countries in Western Europe, which have tried to regulate practice and/or ideology.