Constitutionalising the party

Presented by ANU College of Law

Political parties have featured in constitutional practice and theory largely in the context of party bans by militant democracies. In this paper, I will argue that democratic constitutions should seek to achieve two design objectives in relation to political parties:

  • Separating the state and the ruling party (the separation principle)
  • Discouraging parties from becoming factions (the anti-faction principle)

These design objectives are drawn from the value of democracy itself. With respect to the first objective, a regime where the party and the state are sufficiently fused cannot be described as a democracy because the fundamental democratic tenet requiring genuine political competition is breached. Regarding the second objective, a political party that is captured by a narrow base, an autocratic leadership or wealthy donors, or one that can justify its policies only to a subset of the people rather than all the people is bad for democracy. The paper will then discuss some design solutions that, depending on the context, could be deployed towards these objectives.

Speaker: Associate Professor Tarun Khaitan

Tarun Khaitan is an Associate Professor and the Hackney Fellow in Law at Wadham College, currently on special leave for four years from 1 September 2017. During this period of leave, he is a Future Fellow at the University of Melbourne to work on his research project on the resilience of democratic constitutions, with a focus on South Asia.

He is also a visiting Global Professor at New York University Law School, the General Editor of the Indian Law Review, an Academic Fellow of the Honourable Society of the Inner Temple, an Affiliate of the Bonavero Institute of Human Rights and an Associate of the Oxford Human Rights Hub. He completed his undergraduate studies (BA LLB Hons) at the National Law School (Bangalore) in 2004 as the 'Best All Round Graduating Student'. He then came to Oxford as a Rhodes Scholar and completed his postgraduate studies (BCL with distinction, MPhil with distinction, DPhil) at Exeter College. Before joining Wadham, he was the Penningtons Student (Fellow) in Law at Christ Church.

His monograph entitled A Theory of Discrimination Law (OUP 2015 hbk, South Asia edition and Oxford Scholarship Online, 2016 pbk) has been cited by the European Court of Human Rights and reviewed very positively in leading journals, including in Law and Philosophy, where Sophia Moreau said "In this magnificent and wide-ranging book ... Khaitan attempts what very few others have tried." In Ethics, Deborah Hellman said that its 'ambitious scope and the careful argumentation it contains make it one of the best in the field'.  In his review in the Modern Law Review, Kasper Lippert-Rasmussen claimed that "Khaitan's account is sophisticated, extensive and among the best normative accounts of discrimination law available." Colm O'Cinneide's review in the Oxford Journal of Legal Studies says that "Khaitan's quest shows up the inadequacies of previous attempts to track down this Holy Grail, and the path he has laid down will encourage others to follow in his footsteps." A full list of reviews is available here.

He helped draft the Indian Anti-Discrimination and Equality Bill 2017. His research on discrimination law has been quoted and relied upon by the Indian Supreme Court. He writes regularly for newspapers and blogs: links to his columns are available here. Dr Khaitan was awarded the 2018 Letten Prize, a 2 Million Norwegian Kroner award given biennially to a young researcher under the age of 45 conducting excellent research of great social relevance. He is using a part of the award towards setting up the Indian Equality Law Programme, aimed at capacity-building for early career scholars.