AS Chief Election Commissioner, T.N. Seshan had sufficient knowledge of the law to appreciate when his extrapolations would be baulked. He was only beguiled by the Supreme Court's initial indulgence of his whims, a situation that was decisively reversed when the judiciary found his misreading of its rulings to be deeply corrosive of the integrity of the constitutionally protected office he held.
A ruling that was among Seshan's most famous provided the basis for Election Commissioner G.V.G. Krishnamurthy's recent public outburst, one that many believe tested the limits of his legitimate authority. Asked to arbitrate on one of the periodic schisms within the ranks of the Janata Dal, Seshan had in 1994 identified the failure of internal democracy within the party as the fundamental cause of the adjudicatory headache that he had to face. If the party had been faithful to its own constitution in the election of office-bearers, said Seshan, the problem of differentiating degrees of legitimacy between squabbling factions would not have arisen.
Seshan then went on to rule that all parties should follow certain norms of internal democracy in order to qualify for participation in the larger electoral system. It was a ruling that put parties governed by written constitutions in theory, but arbitrary rules of procedure in practice, on the defensive. The Congress(I) and the Janata Dal, both of which follow roughly analogous rules of association, were put on notice of derecognition if they failed to comply with the E.C. directive on internal elections. For the Janata Dal, the ultimatum came in perilous conjunction with an internal crisis provoked by the indictment of the party president for alleged defalcation of official funds. The Janata Dal split on account of the leadership contest, but the Congress(I) managed to keep up the pretence of internal democracy while staying resolutely within the precincts of doctored democracy.
FREEDOM of association is a fundamental right under the Constitution. If the Shiv Sena should decide that it is best served by a dictatorial figure at the helm who will not be subject to any rules of accountability, then it is for the electorate to judge how much latitude it deserves in relation to the parties it is in competition with. Election Commissioner Krishnamurthy was of the opinion that only parties that observe certain norms of internal democracy can faithfully serve the cause of India's electoral democracy. The argument has an undoubted force of legitimacy behind it.
The last thing any democracy would want is a party of authoritarian tendencies that utilises the free electoral space available to constrict and undermine the very principles of electoral freedom. There can be little doubt that the Shiv Sena has in recent times been engaged in precisely this project - of utilising the freedom afforded by civil society to damage its basic foundations. To this extent, Krishnamurthy's reading of the necessity for internal democracy in all parties that participate in the electoral process was accurate. Where he stumbled was in his reading of the avenues of correction open to him as a functionary bound by the basic rights guaranteed in the Constitution.
The situation obviously calls for a judicial reading and an authoritative pronouncement on the fundamental principle of freedom of association. The Supreme Court had in the case of S.R. Bommai vs the Union of India held that secularism as a basic principle of the Constitution required all parties that contested elections to be secular in thought and action. This ruling may still leave an area of ambiguity for further exploration on what constitutes a secular party. But it is easily extrapolated from this formulation that a democratic polity requires all participating parties to be democratic in thought and practice. There would be little scope to cavil at this formulation since democracy is less susceptible to mystification and obfuscation as a principle than secularism.
While no democracy can be perfect, one that allows a party such as the Shiv Sena to flourish would seem to be in serious need of introspection. No abridgment of the right to free association can obviously be advocated with any sense of conviction. But neither can a party that openly advocates the overturning of fundamental principles of equality before the law and the symmetric treatment of all communities flourish for long without gravely threatening that freedom and much else besides.