[This is a guest post by Udit Bhatia.]
In a previous paper and post on this blog, I have highlighted the deliberative costs that the anti-defection law imposes on the legislative process. There are, I believe, good grounds to discard India’s anti-defection law, at least in its present form. In this post, I draw on my recent paper to advance an alternative response we might offer, assuming the anti-defection law remains in place. This response consists in insisting that the power to make decisions on legislative issues within the party be shared across multiple persons.
For the most part, parties have been treated under common law as merely private associations. Grounded in the freedom of association, parties are permitted wide latitude in the regulation of their internal affairs. This conceptualisation places sharp limits on the degree to which the law may intervene in a party’s internal affairs. In recent times, both public law and academic scholarship have advanced a second view of the party as a quasi-public body. On this second account, parties are now increasingly embedded in networks of state regulation and cannot be described as simply creatures of contracts between private actors. Moreover, parties also perform ‘public functions’, like serving as ‘conduit to Parliament’ or the ‘transmission belt for the development and carriage of policy into legislation and practice’. The latter conception significantly expands the scope of legal regulation of parties’ affairs. Yet, since parties are not agencies of the state, they would continue to enjoy considerable discretion in the regulation of their internal affairs.
I argue that there is a third way in which we could conceptualise the party. In jurisdictions with anti-defection laws, the party should be seen as a legislative entity. This is, first, because of the expressive dimension of anti-defection laws: the constitution lends its support for the idea that the party, and not the legislator, is the proper bearer of legislative power. Cross-voting is prescribed as a penalty for dissenting legislators, and MPs who fail to concur with their party line are conceived as rule-breakers. Further, as I have previously argued, an anti-defection law can sharply limit individual legislators’ ability to influence their party’s position on a bill. Empirical research demonstrates that much of the task of legislating takes place behind the scenes before a matter comes up for a floor vote. (This, by the way, is why near-perfect party unity in many democratic systems is not a good indicator of lack of dissent there; this can hide the considerable influence legislators routinely exert on policy during pre-vote negotiations). With anti-defection laws in place, individual legislators are particularly disadvantaged in their ability to exert such ‘latent influence’. This is partly due to the severity of the penalty (since legislators stand to lose their place in parliament, and not just from the party’s legislative caucus), but also because, in some cases, they enable leaders of the ruling party to enact legislation by simply issuing whips. When their majority in parliament is large enough, leaders of the ruling party can afford to disqualify rebels and ensure safe passage for their bills. The party should, for these reasons, be understood as the constitutionally recognised wielder of legislative prerogative. It is not a private organisation, nor merely a quasi-public one, but a legislative entity once underpinned by an anti-defection law.
What implications does this conceptualisation have for parties’ internal affairs? I argue that viewing the party as a legislative entity allows us to insist that parties should be prevented from concentrating internal decision-making power in the hands of a few. The argument starts from a simple premise: even in jurisdictions where the act of law-making is entrusted to the party instead of legislatures, this role must be performed consistent with the principles central to the task of legislating. Law-making must comply with procedural and substantive limits that govern the legislative sphere. The requirements that the law places on a legislative body should apply to whatever body holds the power to legislate. One such principle, central to legislation, is the many-minds principle, according to which the power to make laws must be distributed across multiple persons, and not concentrated in the hands of a few.
The many-minds principle is grounded in procedural as well as epistemic considerations. On the procedural side, the many-minds principle stems from the position that the coercive power of laws require public justification. As Jeremy Waldron argues, “If a citizen who disagrees with the new law asks why she should obey it, we want to be able to say that her disagreements…were aired as fiercely and forcefully as possible at the time the law was considered and that it was enacted nevertheless in a fair process of deliberation and decision”. The concern for legitimacy via public justification, in turn, places a premium on the representativeness of the legislative assembly (since a more numerous assembly is more likely to represent competing points of view compared to a small group of decision-makers). Further, we might also view democratic decision-making as an epistemic activity: an exercise in problem-solving that helps differentiate better from worse solutions to society’s collective challenges. From this perspective, law-making must be performed by multiple persons since this expands the pool of perspectives, making it likelier that relevant interests and arguments will be properly evaluated.
How widely decision-making power ought to be dispersed is a difficult question. Is it sufficient that twenty actors hold decision-making power, or should this number be higher? While these are no doubt controversial questions, party constitutions—and practice—in India fail to satisfy the procedural requirement even minimally. This is because they tend to grant a single figure—the party head (or their nominee[s])—a disproportionate degree of political power. At the very least, then, this power must be further dispersed for parties to perform their legislative role consistent with the principle of decision-making by the many. It also does not suffice to say that multiple elites already participate in the party’s policy-making process. The point is that the formal rules on decision-making should empower multiple individuals, rather than leaving inclusiveness to the whims and preferences of individual party heads.
It is also worth emphasising that the many-minds principle is compatible with what has been described as an ‘autopilot’ mode of decision-making, where multiple actors hold the power to take decisions but normally trust, and defer to, decisions taken by a small group among them. What is crucial here is the availability of institutionalised opportunities for critical contestation and the presence of a political culture within the organisation that permits their use. When these circumstances obtain, deference can represent a form of division of labour rather than forfeiture of power. Under these conditions, it is open to the decision-making committee of the party to insist that a particular issue requires further scrutiny instead of the deference it normally demonstrates. This approach to the many-minds principle is also consistent with how partisanship tends to operate in legislative processes: co-partisan political leaders are likely to support their party even without the threat of sanctions. So, even if the party’s decision-making forum for legislative issues comprises many members, it wouldn’t be surprising if decisions were actually taken by a smaller number of individuals. Nevertheless, the dispersal of legislative power would allow the wider committee to disrupt the routine decision-making process and call for further scrutiny of bills from time to time. Given the costs that the anti-defection law entails for legislative deliberation, this would be a limited but important check on the legislative process.
This post is based on the author’s recent article, What’s the Party Like? The Status of the Political Party in Anti-Defection Jurisdictions published in Law & Philosophy. Please contact the author at udit.bhatia@jesus.ox.ac.uk for an ungated version of the article.
