The Constitutional Theory and the Legal Regulation of Political Parties in India

Résumé 0

Indian constitutional democracy is unimaginable without political parties. Yet, parties have received hardly any attention in Indian constitutional or legal scholarship. To bridge this conspicuous gulf, this thesis studies the constitutional theory and the legal treatment of political parties in India. This thesis makes two key contributions. First, it articulates a theory of a desirable relationship between political parties and the Indian Constitution. I term this normative theory ‘constitutional particracy’. Constitutional particracy consists of a set of roles political parties ought to perform within four constitutional structures – electoral process, parliamentarism, bicameralism, and federalism. The performance of these normative roles often requires parties to manipulate the strict formalities of constitutional procedures. However, this unique ability of parties to effect de facto changes to the formal Constitution also makes them constitutionally desirable. Constitutional particracy is desirable because it can make the formal Constitution effective, legitimate, and meaningful under the conditions of mass franchise, a large pluralist society, and a modern complex state. Second, the thesis analyses diverse areas of law that influence the normative roles of parties. In particular, I will focus on the law governing the electoral process, the anti-defection law, the legal treatment of opposition parties, and the legal regulation of intra-party processes. The thread that connects our analysis of various areas of law is this: the function of the law should be to create conducive conditions for constitutional particracy. As such, the theory of constitutional particracy plays three critical roles in our legal analysis: it is an ally that may help us justify certain legal developments; a mirror that reveals the shortcomings of the existing law; and a guiding light that shows us the appropriate direction for legal reform. Through these interventions, the thesis attempts to rescue political parties from the periphery of the Indian Constitution and situate them at its epicentre.