Sabarimala row: Who will discipline political parties for failing to uphold a Supreme Court verdict or the Constitution?

Once the Supreme Court allowed women of all ages entry into the Sabarimala temple citing the constitutional morality and values, one would have expected the political parties across the spectrum to honour it and lend their support to the Kerala government in implementing it. But the two main political parties – the BJP and Congress – are opposing it and there are organised protests, violence and violation of the order. This is shocking to say the least.

Sub-section 5 of Section 29A of the Representation of the People Act (RP Act), 1951, which governs registration of political parties, very specifically asks political parties to given an undertaking declaring their “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”.

But the conduct of the BJP and Congress is quite the contrary. The BJP has not only galvanised its cadre to prevent women’s entry into the temple, it has announced a six-day rath yatra against the verdict which would be led by its state president PS Sreedharan Pillai. The Congress, too, has taken a stand against the court verdict and no less than its national president has said that he backs the Kerala PCC’s stand opposing the verdict.

A group of policewomen deployed to maintain peace at the Sabarimala temple seen at the shrine. While they were not present at the temple as devotees, they became the first women younger than 50-years of age to have ever entered the shrine. Image/TK Devasia

A group of policewomen deployed to maintain peace at Sabarimala seen at the shrine. While they were not present at temple as devotees, they became first women younger than 50-years of age to have ever entered the shrine. Image/TK Devasia

The Supreme Court verdict had, among other things, cited its own earlier judgement to drive home why it placed so much reliance on the Constitution of India: “When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed”. (emphasis added)

While the onus to honour the constitutional morality and values is on all the citizens and institutions, the political parties have a far greater and more critical role to play and hence, the subject of this article. This role can be summed up in what a Law Commission of India report of 1999 on Reforms of the Electoral Laws said: “It is the political parties that form the government, man the Parliament and run the governance of the country”. Eminent academic Pratap Bhanu Mehta once elaborated on the significance of political parties in these words: “Democracy performs its most salient functions through (political) parties. The selection of candidates, the mobilization of the electorate, the formulation of agendas, the passing of legislation – is all conducted through (political) parties. (Political) Parties are, in short, the mechanisms through which power is exercised in a democracy”. Need one say more?

The irony is nobody is even approaching the Election Commission of India (ECI) to seek de-registration of these political parties for violating their oath of allegiance to the Constitution – which is a logical course or at least issue show cause notices to explain their behaviour. Why so?

Well, the answer is even more ironical: While the ECI has the power to register a political party, it does not have the power to de-register it. Ironies of irony, the Supreme Court said this in a judgement in 2002, without even stating who does or seeking such a provision. While denying the right to the ECI, its order had this to say about the ECI’s powers: “The Election Commission while exercising its power to register a political party under Section 29A of the (RP) Act, acts quasi-judicially and decision rendered by it is a quasi-judicial order and once a political party is registered, no power of review having conferred on the Election Commission, it has no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed breach of undertaking given to the Election Commission at the time of registration”.

The order provided the following three exceptions though: (a) when registration was obtained by fraud or forgery (b) when nomenclature of association, rules and regulations amended abrogating their conforming to the section 29A or (c) a party is declared unlawful.

Since 1998, the ECI has been asking the Government of India for power to de-register political parties for many valid reasons but all in vain. Its last attempt was in February this year when it asked the Supreme Court to give it the power since the political parties and the Parliament are reluctant to do so and nobody has the power to de-register if not for the three exceptions the Supreme Court had provided in its 2002 judgement.

The ECI’s plea has been foregrounded with several such recommendations by the Law Commission, National Commission to Review the Working of the Constitution and the Ministry of Law at various points in time, which, among others, specifically mentions that declaration to adherence to democratic values and norms of the Constitution in their inner party organisations should form a part of the rules and bylaws of the parties seeking registration.

The Government of India did make an attempt in 1994 by introducing a Bill to amend the RP Act, which proposed to introduce Section 29-B in the RP Act whereunder a complaint to be made to the High Court within whose jurisdiction the main office of a political party is situated for cancelling the registration of the party on grounds including violation of section 29A (5) but it lapsed on the dissolution of the Lok Sabha in 1996. Nothing more has been heard of it.

Now, it is for the Supreme Court to step in and expand its 2002 order to include the failure to honour and uphold the Constitution as a ground for de-registration as well. Who does it give the power to – the ECI or a High Court – is for its fine sense of judgement to decide, but decide it must, for no such power has meant that the political parties make a mockery of the Constitution or the Supreme Court’s judgement itself, as is the case with the Sabarimala episode now.


Updated Date: Nov 05, 2018 18:38 PM

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