WEBINAR 7: INDIA & SRI LANKA - What (if Anything) does Party Dominance Mean for Indian Constitutionalism?
Aradhya SETHIA
23 November 2020
In May 2019, the Bhartiya Janata Party (BJP) registered its second consecutive win in the elections to the lower house (Lok Sabha) of the Indian Parliament. There is a broad consensus among political scientists that the history of Indian partisan politics, before the first BJP win in 2014, could be divided into three different party systems. From 1952 to 1967, the Indian party system was characterised as a dominant party system tempered by the intra-party accommodation within the Congress Party. In 1967, multi-party competition emerged, particularly at the state level. However, except for the post-emergency elections in 1977, Congress continued to dominate national elections. The period of 1989-2014 marked the period of the third party-system, during which national politics reflected state-level competition, leading to a long period of coalition governments at the centre. There seems to be an emerging consensus that with the two consecutive BJP victories, India has now moved into its fourth party system, which is anchored around the dominance of the BJP in national politics.
Scholars have dissected various causes of BJP’s dominance, including, but not limited to, ideological conflicts, demographic changes, social cleavages, and electoral strategies. However, the constitutional consequences of its victory have received relatively less attention. What are the implications of these new dynamics of party politics for the workings of the Indian Constitution? There have been long-standing debates around the ideology of the ruling party, and how it replaces, undermines, or reconciles with the ideological underpinnings of the Constitution. This essay, however, does not focus on the ideological ends for which state power may be used. Instead, it seeks to examine the impact of party dominance on constitutional means.
There have been growing concerns about the erosion of the independence of institutions, executive aggrandizement, and ‘electoral authoritarianism’. At the heart of these claims lie worries about the decline of institutional checks and balances in the face of single-party dominance in national elections. Is the current state of party dynamics merely an aberration? Or does it reveal something deeper about the shortcomings of the Constitution itself? If it is the former, one may argue that the bug is not in the Constitution; rather, it is politics that has failed. The way forward, then, is to restore political norms, not “fixing” a supposed defect in constitutional design. If it is the latter, which I argue is the case, we may benefit from thinking about how the structural arrangements of power under the Constitution have enabled, and continue to enable, the erosion of accountability in the face of party dominance. In other words, the checks-and-balances deficit may not be a bug introduced by the current state of party politics, but a dormant feature of the Constitution, which is revealed in the face of formidable majorities. In the same vein, I will discuss three inter-related constitutional structures in India: parliamentarism, federalism, and electoral regulation. These three structures are also critical spaces for securing the accountability of a strong central government. This blog post, however, is neither a comprehensive account, nor a reform agenda. Instead, it only seeks to advance a few modest provocations.
At their core, constitutions create and organise political power. Constitutional law presumes or expects that political power is, or ought to be, exercised in accordance with the formal arrangements of political power. In reality, the formal constitutional branches may not be ‘the site of action’. For instance, the dynamics of party politics, which facilitate the operation of constitutional institutions may undermine the intended system of checks and balances. In India, the constitutional forms of the relationship between the legislature and the executive, the union and the states, voters and representatives were conceived without an appreciation for the reality of political parties. The founding of the Indian Constitution occurred in the context of one-party dominance. The contours of a credible political competition were not clear, and the Congress Party internalised many aspects of inter-party competition. Therefore, the founders chose to be silent on the role played by party politics in the working of structural power arrangements. The emergence of a dominant party system provides us with an opportunity and context to think about the spaces that party politics occupy in formal constitutional arrangements. This essay, therefore focusses on the impact of party dominance on three key concepts of constitutionalism – parliamentarism, federalism, and elections.
Parliamentarism
Unlike the US-style presidential system, where ordinary citizens directly elect the executive head, a parliamentary government serves while it exercises the confidence of the legislature – a directly elected body. However, in a parliamentary system, the function of the legislature is not restricted to government formation. At least in theory, the government’s accountability to the legislature is the defining feature of parliamentary government. In its actual functioning, Parliament is not a collection of individual legislators; it is organised along partisan lines. Thanks to the anti-defection amendment, party leadership has attained an enhanced role in the legislature in India. Moreover, studies on the internal functioning of parties show an intense concentration of power in the leadership of Indian parties. As a result, parliamentary accountability of the executive is unlikely to come from within the party.
Given these features, one-party dominance in Parliament poses significant stress on Parliament’s accountability function. Having recognised that one-party dominance can cause an accountability deficit, what if anything, could potentially overcome this deficit? Three features of the Indian parliamentary System carry the potential for institutional innovations: (1) the second chamber of the bicameral Parliament (Rajya Sabha), (2) parliamentary opposition, and (3) the office of the Speaker.
The Indian Parliament is a bicameral legislature. The Rajya Sabha consists of ‘representatives of each State’ who are indirectly elected by the members of the Legislative Assembly of their respective states. Members of the Legislative Assembly are, in turn, elected directly from state-level territorial constituencies. Thus, the Constitution articulates the relationship between members of the Rajya Sabha, the state legislators, and ordinary voters. Meanwhile, at least theoretically, there seems to be no role for political parties. Moreover, the Rajya Sabha is a permanent body whose members are elected for six-year terms, with one-third of its members retiring every two years. The staggered terms of the Rajya Sabha ensure that the partisan organisation of the second chamber does not reflect the immediate political composition of the Lok Sabha. Therefore, although the BJP dominates in the Lok Sabha, it does not hold a simple majority in the Rajya Sabha, thus encouraging the BJP to form coalitions with smaller parties in order to ensure the passage of its bills in the Rajya Sabha.
In 2006, amendments to the Representation of the People Act, 1951 removed the requirement that a member of the Rajya Sabha should hold a domicile in their respective state. Furthermore, the amendment mandated the disclosure of state legislators’ votes to a party agent. The Supreme Court of India upheld the constitutionality of both amendments, thus cementing the political parties’ control over the second chamber. Under the new party-based conception of the Rajya Sabha, individual legislators became formal ‘vehicles’ for the parties to appoint Rajya Sabha members who may have no connection to the states they are representing. In effect, Rajya Sabha members thus elected are likely to be accountable to the party leadership, not to the state legislators. Staggered elections are, by design, a powerful counterforce to the accountability deficit caused by party dominance in Parliament but the recent amendments have diluted their role and reduced their effectiveness. To rethink the role of the Rajya Sabha as an institution for accountability in the context of party dominance, we may have to ask – Should we make changes to the design of the Rajya Sabha in ways that can contain the constitutional costs of single-party dominance in Parliament?
In India, the role of parliamentary opposition is conceived in severely restricted terms. Although the office of the Leader of Opposition gained statutory recognition in 1977, India has not had a leader of the opposition in the Lok Sabha for 33 of the 71 years since the first general elections in 1951. This is because of the Speaker’s direction that requires a party to secure more than ten per cent of the total seats to be recognised as a parliamentary party, and thus, be eligible to hold the position of the Leader of Opposition. Moreover, there are no significant opposition privileges and there is no practice of appointing shadow cabinets. The truncated role of parliamentary opposition under the Indian Constitution means that the most potent political check on the government operates without any constitutional teeth. The new context of party dominance provides India with an opportunity to rethink the ways in which opposition could be institutionalised.
Finally, the Speaker (primarily the Speaker of the Lok Sabha) ought to play a significant role in securing the government’s accountability to Parliament. Historically, the role of the Speaker has attracted various controversies. For instance, the Speaker has repeatedly allowed the introduction of crucial substantive legislations in the form of money bills. Since the Rajya Sabha does not exercise a veto over money bills, the government can easily bypass the bicameral check on its power. The immediate responses to the Speaker’s partisan behaviour have been to call for judicial review of Speaker’s decisions. Judicial review of the Speaker’s decisions has relied on public law grounds, such as ‘infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity’. However, administrative law doctrines have largely proved to be insufficient in providing appropriate relief against what seems to be a problem of institutional design. By convention, the Speaker is appointed by a majority vote in the legislature. Despite a partisan appointment procedure, ‘the robes of the Speaker’ may ‘change and elevate the man inside’. However, neither judicial review of the Speaker’s discretion nor political norms have been sufficient to overcome the problem of partisan appointments to the role of Speaker. If so, should we think about the institutional design, particularly, the appointment procedure of the Speaker? For instance, would a multi-partisan appointment procedure serve the objective of curtailing Speaker’s partisanship?
Federalism
Along with one-party dominance, another significant characteristic of the new party system is the development of distinct identities between voter behaviour at the national and state level elections Judging by electoral results, there seems to be a decoupling in voting preferences in national and state-level elections. The results show that voters are making different and seemingly conflicting choices, even when both national and state elections are held together or separated by only a few months, a phenomenon that has previously been termed ‘electoral federalism’. Despite the emergence of electoral federalism, in the face of one-party dominance, the Indian Constitution reveals its tendencies to concentrate power in the central government while diminishing the position of states. Over the last few months, various controversies ranging from the Citizenship Amendment Act to the indirect taxation structure and agricultural reforms, have made Union-State relations the primary battleground of partisan contests.
The founding choice of a unitary tilt in the Constitution is further bolstered by the role of state governors, who have historically played a partisan role in favour of the party in power in federal government. This is because the central government controls the appointment and removal of state governors. Partisan manipulation of the governors’ powers carries the potential to significantly dilute the powers of democratically elected state governments. If we conceive of federalism as one of the avenues for supplying constitutional checks, these features of federalism undermine the checks on party dominance. If we see federalism as not merely the decentralisation of governance, but as a space for checking party dominance, how should we rethink the design of Indian federalism?
Electoral Regulation
Party dominance also poses a severe risk to electoral regulation. In India, the Election Commission – a constitutional body – is responsible for monitoring and supervising elections. However, the competence to make laws regulating both national and state elections lies exclusively with Parliament. The laws framed by Parliament take precedence over the regulations of the Election Commission. Partisan manipulation of electoral regulation has been the subject of long-standing legal debates in various jurisdictions. In India, the power to make laws regulating both national and state elections lies with Parliament. The context of one-party dominance may further intensify the risks of partisan self-dealing. What should be the appropriate response to the threat of partisan manipulation of electoral laws? Should judicial review of electoral laws take into account partisan effects or motives? Or, should we recognise the exceptionalism of election laws, and instead of focussing only on judicial review, think about law-making procedures that may counter partisan self-dealing? Should the Election Commission be empowered further so that its regulations take precedence? Or, would such an enhancement of the Commission’s powers cause a democratic deficit in the making of the laws that govern democratic politics?
Answering these questions requires untying complex knots. However, the first step would be to recognise that the operation of the Constitution is significantly shaped by the context of the party system in place. The issues explored here are only a few examples of how various design features of the Indian Constitution may facilitate partisan entrenchment and cause accountability deficits. Such partisan control may be particularly dangerous in the context of single-party dominance. Therefore, those who are concerned about the constitutional costs of party dominance may profit more in the long-term from shifting their gaze away from the framework of political norm-violation and towards the structural shortcomings of the Constitution.
Aradhya Sethia is a PhD Candidate and Cambridge International Scholar at the University of Cambridge, where he is studying the role and regulation of political parties and party politics in modern constitutionalism with a focus on India. Before joining Cambridge, Aradhya read for MPhil at Oxford and LL.M. at Yale Law School as an Inlaks Scholar and Lloyds Cutler Scholar. He has served as a resident fellow at Yale Information Society Project, an articles editor of the Yale Journal of International Law. Subsequently, he was a Fox International Fellow at the Centre for Comparative Constitutional Studies, Melbourne Law School. He has previously assisted Justice D.Y. Chandrachud (the Supreme Court of India), Justice S. Ravindra Bhat (High Court of Delhi), and the Attorney General for India. He received the 2019 Indian Law Review Best Article Prize for his article ‘Where's the Party?: Towards a Constitutional Biography of Political Parties’. Twitter @sethiaaradhya