Researching American constitutional law in connection with a legal preposition, I accidentally chanced upon the principled opposition of a distinguished lawyer Denise Merrill secretary of state of Connecticut — a state in the United States who had been pressing for the repeal of a longstanding party loyalty law that allows party apparatchik’s to expel a person from the party if s/he displays a lack of fidelity to the party’s core principles. She argues that the party loyalty law is outdated and offensive to basic democratic principles. However, before examining that proposition, a fundamental question needs to be answered first? What are political parties?
The United States Supreme Court examined this question with regard to the definition and character of political parties. In California Democratic Party vs Jones, 530 US 567 (2000), the US Supreme Court sought to distinguish between the private vs public affairs of a political party:
“Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself. Consistent with this tradition, the court has recognised that the First Amendment protects ‘the freedom to join together in furtherance of common political beliefs’.”
However the same US Supreme Court in the momentous matter of Elfbrandt vs Russell, in a 5 to 4 decision, declared unconstitutional Arizona’s requirement of a loyalty oath from state employees.
How does the loyalty question in the context of political parties play out in modern times? The last three remaining Republican nominees in the American presidential primaries perhaps gave the most prescient answer. When asked about the loyalty oath that they had signed to support the Republican nominee and not to run as an independent or as the candidate of another political party against him, Ohio governor John Kasich told CNN: “All of us shouldn’t even have answered that question.” Senator Ted Cruz went even further at a town hall saying, “I’m not in the habit of supporting someone who attacks my wife and my family.”
When the moderator asked Donald Trump whether he is sticking with his pledge to support the nominee. “No, I don’t anymore,” Mr Trump had said. “No, we’ll see who it is.” This was six months after all of them had signed a loyalty oath put out by the Republican Party in September 2015. It just goes to underscore the transient and fictitious nature of political loyalty vows.
In hindsight it seems Mr Trump was far more in sync with the deep-seated resentment among the American people with the dysfunctionality of Washington DC and the incestuous nature of the US establishment that he did not want to be tied down to any commitment that would have precluded the option of running even as an independent.
As events have now evidenced there was substantive silent support for Mr Trump that may have even put him as an independent candidate into the Oval Office in the eventuality that the Republican Party would have decided to dump him. It again reinforces the paradigm that politics has moved from being party-centric to individual-centric. With the advent of the new media that has made public discourse horizontal from vertical the epitaph of political party systems may truly be on the way to be written.
The March of history evidences that individuals have invariably been loftier than the political parties they represented. Winston Churchill was larger than the Conservative Party, Franklin D. Roosevelt loomed over the Democrats, Indira Gandhi towered above the Congress Party, Zulfikar Ali Bhutto was heads and shoulders above the Pakistan People’s Party and Margaret Thatcher soared over the Conservative Party. Even Narendra Modi is bigger than the BJP. With people now becoming weary of establishment politicians this trend has exacerbated and Mr Trump is its latest manifestation.
Loyalty oaths are best characterised as perverted litmus tests of paranoid states and organisations. During the period of McCarthyism in the US with its frenzy to root out Communists the Weavers — an admired folk-singing quartet that consisted of Pete Seeger, Lee Hayes, Fred Hellerman and Ronnie Gilbert — were persecuted for refusing to sign a loyalty pledge.
In Great Britain an increasing number of MPs are refusing to swear allegiance to the British crown. Many have muttered uncharitable stuff about the archaic sovereign under their breath while reciting the pro-forma pledge only to be picked up by sensitive mikes and subsequently broadcast.
The incongruity of the fidelity paradigm was taken to an entirely different level in Nazi Germany. There even the priests who were men of God were asked to swear allegiance to the Reich thereby effectively putting the Nazi state even above God.
Article 16 of the Reich Concordat of 1933 required Catholic bishops and priests to swear an oath of allegiance to the Third Reich. It read: “Before bishops take possession of their dioceses they are to take an oath of fealty either to the Reich representative of the state concerned, or to the President of the Reich, according to the following formula: ‘Before God and on the Holy Gospels I swear and promise as becomes a bishop, loyalty to the German Reich and to the (regional) state of... I swear and promise to honour the legally-constituted government and to cause the clergy of my diocese to honour it. In the performance of my spiritual office and in my solicitude for the welfare and the interests of the German Reich, I will endeavour to avoid all detrimental acts which might endanger it.”
That now brings us to India. Article 19 (1)(c) of the Constitution gives citizens the right to form associations and unions. Does that then necessarily entail that they can become closed structures that band together based on a shared set of doctrines and therefore have an inherent right to bar as member persons who do not demonstrate adherence to all the same dogmas. This was a proposition put forward in the Re. BCCI vs Cricket Association of Bihar case by state cricket associations while opposing the acceptance of the Lodha Committee recommendations and rejected by the Supreme Court.
Hypothetically, if it is argued that the above maxim is correct and the Supreme Court erred in striking it down even then can this be applied to political parties? Political parties are more than mere private voluntary organisations. They are public organisations. Since political parties are registered with the Election Commission in terms of Section 29-A of the Representation of People’s Act 1951 and are subject to the rigors of Para 16-A of the Election Symbols (Reservation and Allotment) Order, 1968 they stand on a different plane than non-governmental structures and must follow a different standard of public conduct.
It may not be constitutional or even legal to exclude from the ambit of a political party people who may not subscribe to each and every tenet and direction of a political party for that would call into question both its inclusiveness and more importantly its representative character as a public organisation.
Too often loyalty oaths have been used to split populaces, to act punitively both retrospectively and prospectively towards those with whom there is a disagreement or whose influence is sought to be diminished if not eliminated. It is therefore conscientious to disagree with it from a purely philosophical, ideological and legal postulate to loyalty oaths and affirmations. It is an idea whose time has expired. It is the leader in a person that people follow not necessarily the political party.
The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari
