The South Asia Law Discussion Group hosted Udit Bhatia, Junior Research Fellow in Politics and Lecturer in Political Theory at Lady Margaret HallUniversity of Oxford, for a talk titled ‘What’s the Party Like? The Normative Status of the Party in Anti-Defection Jurisdictions’. The primary discussant was Dr. Tarunabh Khaitan (Associate Professor of Law at the Universities of Oxford and Melbourne). Bhatia reflected on the implications of anti-defection laws on the role political parties play and as a result the status that must be accorded to them for the purpose of their regulation. 

Bhatia began by highlighting that there has been a lot of debate recently in political philosophy about what kind of entity the party is. While one camp would argue that the party is purely a private entity, and therefore the law can’t have anything to say about it other than to enforce the contract, the second would argue that in fact a political party should be seen as quasi-private entity, having important public functions to perform. However, Bhatia argued, that neither of these really capture the status of parties in jurisdictions with anti-defection laws. According to him, parties must be conceptualised as legislative entities.  

When constitutions express the normative principle that a legislator voting against their party is a rule-breaker, they essentially mandate the legislators to vote in accordance with party lines. Further, since there is no scope for disagreeing with the party stance when voting, they deter legislators from forming opinions contrary to the party’s leaders in the first place. To draw the comparison, Bhatia drew attention to research done on Westminster, which shows that party leaders amend drafts before bringing it to vote in anticipation of the disagreement of party backbenchers. 

As a result, Bhatia argued, parties in jurisdictions with anti-defection laws essentially become the constitutionally recognised wielder of power. Although he does not favour anti-defections laws, but since they continue to exist, the status of political parties must also be altered accordingly. 

Treating parties as legislative actors must then, also affect how and for what they are regulated.  Bhatia argued that while the issues surrounding the process of candidate selection as well as the process of party leader selection are best grounded in the parties’ status as quasi-public associations, the recognition of parties’ legislative status has far-reaching consequences for the issue of interaction between a political party and its parliamentary wing. There are several substantive and procedural principles that legislative bodies must comply with by virtue of their mandate of law-making. Bhatia emphasised that since democratic legitimacy requires representativeness, and indeed diversity of minds is crucial to solve complex problems before legislatures, the many minds principle must also be respected by political parties as legislative entities. 

As a result, parties must ensure that their internal decision-making authority is spread across many actors rather than concentrated in the hands of a few.Bhatia argued that the party constitutions in India and Pakistan fail to satisfy this requirement. In Pakistan, the party constitutions (PML-N and PTI) do not specify how the relationship between the extra-parliamentary party and the parliamentary party would be regulated. However, the Supreme Court of Pakistan in a recent case held that Article 63A of the Constitution (the anti-defection law) must be interpreted to mean that the discretionary power available to the party head renders him the primary authority over the parliamentary party. In India, as outlined by Bhatia, despite the seemingly complex party structure, where the extra-parliamentary party’s relationship with the parliamentary party is mediated through a specific board designed for this purpose, the many minds principle isn’t adequately complied with since the Party head (of both INC and BJP) controls the body which elects the board. 

Finally, Bhatia discussed the judicial dealings with the internal workings of political parties. In particular, he highlighted the Anil Thomas case in Kerala High Court, where the Court refused to intervene in the inner workings of the Congress, holding that it was a private entity. However, a recent judgment in the Supreme Court of Pakistan fared better in that it held that since Nawaz Sharif has been disqualified from the parliament, he couldn’t continue to be the head of PML-N and therefore control legislators. 

Bhatia emphasised that while this case recognises a negative principle, he is calling for a positive one. Tying it back to Khaitan’s discussion on the erosion of democracy in India, he highlighted that recognising the legislative status of political parties is essential to allowing for scope for resistance from within the party. 

Khaitan, while commenting on Bhatia’s piece, made key points on the methodology adopted especially the lack of an empirical basis for the positive claims made, such as that Members of Parliament (MPs) do not disobey party leaders due to anti-defection laws and to what extent voters actually vote for the party instead of the candidate. Further, he pointed out that the anti-defection law in India, for instance, leads to a party split where more than one-third MPs vote against the party whip, which may be considered a check enough. Khaitan also highlighted that ultimately, organising the internal affairs of the political parties democratically may not be the best way to facilitate democratic functioning of the State, and the key question still remains about the composition of the electorate who’d elect the party leader. Khaitan argued that the most defensible model then would be to have an oligarchy inside the party. 

In response, Bhatia emphasised that the aim of his paper was limited to establishing the importance of having multiple actors direct the party, and not that there must be internal democracy. Further, getting evidence about internal party affairs is especially difficult. Finally, he accepted Khaitan’s proposition that an oligarchy inside the party would be a better position and consistent with the many minds principle.