Political Pluralism

The tension is obvious and it is worth naming. A doctrine that values competing organised groups is qualified by a rule that a legislator's individual vote against the group costs the seat. The defence is that a party's mandate is what the electorate voted for; the objection is that it converts a legislature into a set of blocs and removes the individual conscience that debate presupposes.

The cases

The finality clause fell and the review survived. In Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686. Facts. A challenge to the Tenth Schedule, paragraph 7 of which provided that no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member. Held. Paragraph 7 was invalid for want of ratification by the States under the proviso to article 368(2), since it affected the powers of the High Courts under article 226 and of the Supreme Court under articles 32 and 136; the rest of the Schedule was upheld; and the Speaker or Chairman deciding a disqualification ACTS AS A TRIBUNAL, so the decision is subject to judicial review, though on limited grounds such as jurisdictional error, mala fides, non-compliance with the rules of natural justice and perversity, and not at an interlocutory stage. Why it matters here is that it is the only judicial control there is over the anti-defection law, and it operates only after the Speaker has decided, which is the gap examined in [Where Indian Constitutionalism Is Under Strain].

The election process is a secular activity. In Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629; AIR 2017 SC 401. Facts. A reference to seven judges on the construction of section 123(3) of the Representation of the People Act 1951, which makes it a corrupt practice for a candidate or his agent to appeal for votes on the ground of "his" religion, race, caste, community or language; the question was whose religion "his" refers to. Held. By four to three, that "his" is not confined to the candidate: an appeal in the name of the religion, race, caste, community or language of the candidate, of a rival candidate, of the candidate's agent or of the VOTER falls within the corrupt practice, because the electoral process is a secular activity and an appeal to religion in the course of it is impermissible. The minority read the word narrowly and warned about the consequences for the discussion of group grievances in a campaign. Why it matters here is that it is where political pluralism meets secularism, and both the majority and the minority reasoning are worth stating.

And the contest itself is protected against a legislature. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Facts. The Prime Minister's election had been set aside by the Allahabad High Court, and the Thirty-ninth Amendment inserted article 329A(4), declaring that election valid and beyond the jurisdiction of every court. Held. Clause (4) was void as destructive of the basic structure, because it decided a particular dispute by constitutional fiat and withdrew it from every court, violating the rule of law, FREE AND FAIR ELECTIONS, and the separation of the judicial function from the legislative. Why it matters here is that free and fair elections are a basic feature, so the machinery of political pluralism is beyond the amending power.

A worked example

A State enacts a law providing that no association may contest an election unless it has been registered for five years, that no candidate may refer to the caste composition of a constituency in a campaign speech, and that a legislator who abstains on a confidence motion contrary to the party whip shall be disqualified. Analyse each.

The five-year registration requirement engages article 19(1)(c) and article 324. Forming an association is a fundamental right, and a restriction must be reasonable under article 19(4) in the interests of the sovereignty and integrity of India, public order or morality. A rule that excludes every new party for five years is not obviously reasonable, and registration of parties is in any event regulated centrally under section 29A of the Representation of the People Act 1951.

The bar on referring to caste composition is wider than Abhiram Singh. What section 123(3) makes a corrupt practice is an APPEAL for votes on the ground of religion, race, caste, community or language. Describing a constituency's composition is not an appeal, and a State law reaching it would restrict article 19(1)(a) on a ground not found in article 19(2), which Kaushal Kishor v. State of Uttar Pradesh forbids: the grounds in article 19(2) are exhaustive and no additional restriction may be imposed by an interpretative exercise.

The disqualification for abstaining is already the law and is valid. Paragraph 2(1)(b) of the Tenth Schedule covers voting or abstaining contrary to a direction, subject to condonation within fifteen days, and Kihoto Hollohan upheld it.

And the remedy against a Speaker who never decides. Review lies under Kihoto Hollohan, but only after the decision and on limited grounds, which is the standing criticism.

Distinctions

What it does NOT mean

It does not mean the Constitution guarantees a multi-party system by name. It does not mention political parties at all until the Tenth Schedule of 1985; the guarantee is the freedom of association plus free elections.

It does not mean the anti-defection law is unconstitutional. Kihoto Hollohan upheld all of it except paragraph 7, and the objection is to its working rather than its validity.

It does not mean a court will supervise an election as it proceeds. Article 329(b) confines the challenge to an election petition after the poll.

And it does not mean pluralism requires many parties. It requires that power be contestable. A dominant party that can be voted out satisfies the doctrine; one that cannot does not.

Quick revision

Political pluralism: power dispersed among competing organised groups rather than concentrated. Foundations: article 19(1)(a), (b) and (c); article 324's independent Election Commission with the Chief Election Commissioner removable only as a Supreme Court judge; articles 325 and 326, one roll and adult suffrage; articles 327 and 328; article 329 barring courts except by election petition; and articles 75(3) and 164(2) on collective responsibility. Qualification: the Tenth Schedule of 1985, disqualifying a member who voluntarily gives up party membership or votes or abstains against a direction, with merger permitted at two-thirds under paragraph 4 and the Speaker exempted by paragraph 5. Kihoto Hollohan: paragraph 7 void for want of ratification; the Speaker acts as a tribunal and the decision is reviewable on limited grounds, not at an interlocutory stage. Abhiram Singh: the electoral process is a secular activity and "his" in section 123(3) covers the voter's religion too, four to three. Indira Nehru Gandhi: free and fair elections are part of the basic structure.

Test yourself

1. On which three freedoms does political pluralism rest constitutionally? Speech and expression, assembly peaceably and without arms, and the formation of associations or unions: article 19(1)(a), (b) and (c).

2. Why is the Tenth Schedule in tension with political pluralism? Because a doctrine that values competing organised groups is qualified by a rule under which a legislator who votes or abstains against the party direction loses the seat, which removes the individual conscience that legislative debate presupposes.

3. What did Kihoto Hollohan decide about review? That paragraph 7 was invalid for want of State ratification under the proviso to article 368(2), and that the Speaker or Chairman deciding a disqualification acts as a tribunal, so the decision is subject to judicial review on limited grounds such as jurisdictional error, mala fides, breach of natural justice and perversity, but not at an interlocutory stage.

4. What is the corrupt practice in section 123(3) after Abhiram Singh? An appeal for votes, or to refrain from voting, on the ground of the religion, race, caste, community or language of the candidate, of a rival candidate, of the candidate's agent, or of the VOTER, because the electoral process is a secular activity.

5. Why can a State not forbid a candidate from mentioning a constituency's caste composition? Because the grounds of restriction in article 19(2) are exhaustive, as Kaushal Kishor holds, and describing composition is not an appeal for votes on that ground, so the restriction would have no permitted ground to rest on.

6. Does political pluralism require many parties? No. It requires that power be contestable and that a government can be voted out. A dominant party that can lose an election satisfies the doctrine; one that cannot does not.