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What’s the Party Like? The Status of the Political Party in Anti-Defection Jurisdictions

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Abstract

This paper explores how political parties should be regulated in jurisdictions with anti-defection laws, which constitutionalise parties’ control over the legislative process. It begins by arguing that parties in such jurisdictions should be understood as neither private organisations nor quasi-public bodies but as legislative entities. Next, it argues that recognising the legislative status of the party should affect how we think about the legal regulation of its internal affairs. In particular, the law may justifiably demand that decision-making power within the extra-parliamentary party be dispersed across multiple persons and not concentrated in the hands of a few. Finally, I examine the implications of this argument for India and Pakistan, two jurisdictions with anti-defection laws in place.

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Notes

  1. Elmer Eric Schattschneider, Party Government (New York: Rinehart, 1942), p. 16.

  2. For helpful overviews of the mechanisms of party discipline, see Sam Depaw, ‘Government Party Discipline in Parliamentary Democracies: The Cases of Belgium, France and the United Kingdom in the 1990s’, The Journal of Legislative Studies 9 no.4 (2003): pp. 130–146; Christopher J. Kam, Party Discipline and Parliamentary Politics (Cambridge: Cambridge University Press, 2009).

  3. For an account of these two values and their role in normative models of democratic representation, see Dario Castiliogne and Mark Warren, ‘Rethinking Democratic Representation: Eight Theoretical Issues and a Postscript’, in Lisa Disch, Mathijs van de Sande, and Nadia Urbinati, eds., The Constructivist Turn in Political Representation (Edinburgh: Edinburgh University Press, 2019), pp. 26–27.

  4. See Dominique Leydet, ‘Partisan Legislatures and Democratic Deliberation’, Journal of Political Philosophy 23, no. 3 (2014): pp. 235–260; Jonathan White and Lea Ypi, The Meaning of Partisanship (Oxford: Oxford University Press, 2016), pp. 209–228; Andrew Cuddy, ‘When Does Partisanship Become Excessive?’, Representation 54, no. 3 (2018): pp. 261–277.

  5. The Fifty Second Amendment to the Indian constitution disqualifies a member of parliament ‘if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it’. For a more detailed account of the amendment, see Csaba Nikolenyi and Shaul R. Shenhav, ‘The Constitutionalisation of Party Unity: The Origins of Anti-defection Laws in India and Israel’, The Journal of Legislative Studies 21, no. 3 (2015): pp. 390–407; Aradhya Sethia, ‘Where’s the Party?: Towards a Constitutional Biography of Political Parties’, Indian Law Review 3, no. 1 (2019): pp. 1–32.

    The constitution of Pakistan has a similar provision (Article 63-A).

  6. Csaba Nikolenyi, ‘The Adoption of Anti-Defection Laws in Parliamentary Democracies’, Election Law Journal 15, no. 1 (2016): p. 100.

  7. For an overview of judicial precedent for this perspective, see Keith Ewing, The Cost of Democracy (Oxford: Hart Publishing, 2007), pp. 63–86; Graeme Orr, ‘Private Association and Public Brand: The Dualistic Conception of Political Parties in the Common Law World’, Critical Review of International Social and Political Philosophy 17 no. 3 (2014): pp. 338–340; Robert C. Wigton, The Parties in Court: American Political Parties under the Constitution (Lanham, MD: Lexington Books, 2013), p. 125.

  8. Caroline Morris, Parliamentary Elections, Representation and the Law (London: Bloomsbury Publishing, 2012), p. 107.

  9. See Evelyn Brody, ‘Entrance, Voice and Exit: The Constitutional Bounds of the Right of Association’, U.C. Davis Law Review 35, no.4 (2002): pp. 862–865; Nancy Rosenblum, ‘Political Parties as Membership Groups’, Columbia Law Review, 100 no. 3 (2000): pp. 813–844; Julia E. Guttman, ‘Primary Elections and the Collective Right of Freedom of Association’, Yale Law Journal 94, no.1 (1984): pp. 117–137.

  10. Morris, Parliamentary Elections, pp. 117–120; Anika Gauja, Political Parties and Elections: Legislating for Representative Democracy (Surrey: Ashgate, 2010), pp. 92–94; Ingrid van Biezen, ‘Political Parties as Public Utilities’, Party Politics 10, no. 6 (2004): pp. 701–722; Leon D. Epstein, Political Parties in the American Mold (Madison, WI: University of Wisconsin Press, 1986), pp. 155–199.

  11. Morris, Parliamentary Elections, p. 124.

  12. Ibid., pp. 126–128.

  13. Russell Muirhead, The Promise of Party in a Polarized Age (Cambridge, MA: Harvard University Press, 2014), pp. 178–179.

  14. Meg Russell and Philip Cowley, ‘The Policy Power of the Westminster Parliament: The ‘Parliamentary State’ and the Empirical Evidence’, Governance 29, no. 1 (2016): pp. 125–126.

  15. David R. Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale University Press, 1974), p. 107; Meg Russell and Daniel Gover, Legislation at Westminster (Oxford: Oxford University Press, 2017), pp. 134–137.

  16. Udit Bhatia, ‘Cracking the Whip: The Deliberative Costs of Strict Party Discipline’, Critical Review of International Social and Political Philosophy 23, no. 2 (2020): p. 272; Peter Dorey, Policy Making in Britain: An Introduction (London: Sage, 2014), p. 141.

  17. Kihoto Hollohan v Zachillhu, 1992 SCR (1) 686 in the Supreme Court of India; Wukala Mahaz Barai Tahafaz-e-Dastoor vs. Federation of Pakistan, PLD 1998 SC 1263 in the Supreme Court of Pakistan.

  18. Jeremy Waldron, Political Political Theory (Cambridge, MA: Harvard University Press, 2016), p. 154.

  19. Waldron, Political Political Theory, p. 116.

  20. Hélène Landemore, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton, NJ: Princeton University Press, 2013).

  21. See, e.g., Adrian Vermeule, Law and the Limits of Reason (Oxford: Oxford University Press, 2008), pp. 25–56.

  22. The numerical size of a legislative entity has long remained a vexing question. James Madison, while addressing this issue in Federalist No. 55, stated that ‘no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature’. Alexander Hamilton, James Madison, and John Jay, The Federalist: With Letters of Brutus, ed. Terence Ball (New York: Cambridge University Press, 2003), p. 269. Something similar might be said of the numerical size of the party’s decision-making site charged with legislative decisions.

  23. Mark E. Warren, ‘Deliberative Democracy and Authority’, The American Political Science Review 90, no. 1 (1996): pp. 46–60; Alfred Moore, Critical Elitism: Deliberation, Democracy, and the Problem of Expertise (Cambridge: Cambridge University Press, 2017), pp. 64–67.

  24. Philip Norton, ‘Cohesion without Discipline: Party Voting in the House of Lords’, The Journal of Legislative Studies 9 no. 4 (2003): pp. 57–72.

  25. For a recent statement of such a position, see Frances Rosenbluth and Ian Shapiro, Responsible Parties: Saving Democracy from Itself (New Haven, CT: Yale University Press, 2018).

  26. See Christian List, ‘The Discursive Dilemma and Public Reason’, Ethics 116, no. 2 (2006): pp. 362–402; Landemore, Democratic Reason, pp. 185–192.

  27. See, e.g., Mohammad Waseem, Democratization in Pakistan: A Study of the 2002 Elections (Oxford: Oxford University Press, 2012); Kanchan Chandra, Why Ethnic Parties Succeed: Patronage and Ethnic Head Counts in India (Cambridge: Cambridge University Press, 2004); Myron Weiner, Party Politics in India: The Development of a Multi-Party System (Princeton, NJ: Princeton University Press, 1957). Part of this neglect also stems, perhaps, from the predominant view that parties in countries like India are ‘non-ideological’ in nature, oriented largely towards clientalist politics based on ascriptive identities. For a recent challenge to this view, see Pradeep K. Chhibber and Rahul Verma, Ideology and Identity: The Changing Party Systems of India (Oxford: Oxford University Press, 2018).

  28. See, e.g., Kanchan Chandra and Wamiq Umaira, India’s Democratic Dynasties, Seminar 622 (June 2011).

  29. Again, an analogy with disenfranchisement serves to underscore this point. A minority group might, despite holding the franchise, be outvoted by the majority group. To deny it the vote, though, is to fail to try and leverage its capacity for influence by means like building coalitions.

  30. Fabio Wolkenstein, ‘Intra-Party Democracy beyond Aggregation’, Party Politics 24, no. 4 (2018): pp. 323–334; Carlo Invernizzi-Accetti and Fabio Wolkenstein, ‘The Crisis of Party Democracy, Cognitive Mobilization, and the Case for Making Parties More Deliberative’, American Political Science Review 111, no. 1 (2017): pp. 97–109; Enrico Biale and Valeria Ottonelli, ‘Intra-Party Deliberation and Reflexive Control within a Deliberative System’, Political Theory 47, no. 4 (2019): pp. 500–526.

  31. Something similar could be said of the possibility, highlighted previously, wherein the decision to instruct the party’s legislative wing might be vested in multiple committees, each tasked with specific clusters of policy issues. This might reduce the demands for inclusion we place on a central committee, but given the inevitable discretion such a committee would enjoy, especially in ensuring a coherent set of policies, a multiplicity of perspectives would remain important there.

  32. Biale and Ottonelli, Intra-Party Deliberation, p. 518. The authors remind us that practices like this are in use by some left-wing European parties like the Democratic Party in Italy.

  33. Zulfiqar Ahmed Bhutta v Federation of Pakistan in the Supreme Court of Pakistan, Constitution Petitions No.37 to 45, 47 to 51 & 54 of 2017 and Civil Miscellaneous Appeal No.244 of 2017, 37.

  34. Article 25A of the Constitution of the Indian National Congress; Article 25 of the Constitution of the Bharatiya Janata Party.

  35. Ibid.

  36. Article 19 of the Constitution of the Indian National Congress.

  37. Article 20 of the Constitution of the Bharatiya Janata Party.

  38. Article 19, Disciplinary Rules, Constitution of the Indian National Congress.

  39. Article 18(i), Constitution of the Indian National Congress.

ACKNOWLEDGEMENTS

I would like to thank Larissa Katz, John Oberdiek, and two anonymous reviewers for Law and Philosophy for helpful comments on this paper. I also grateful to Dimitrios Efthymiou, Lise Herman, Tarunabh Khaitan, Vatsal Naresh, Harshavardan Raghunandhan, Élise Rouméas, Jay Ruckelshaus, Ewan Smith, and Leah Trueblood, and especially to Sam Bagg and Stuart White. This paper also benefitted from feedback from audiences at Oxford, Sheffield, and Chicago.

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    Udit Bhatia

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Bhatia, U. What’s the Party Like? The Status of the Political Party in Anti-Defection Jurisdictions. Law and Philos 40, 305–334 (2021). https://doi.org/10.1007/s10982-020-09399-y

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