Two Constitution Benches of the Supreme Court of India delivered important judgments last week. first case fixed That the Delhi government headed by the chief minister – and not the lieutenant governor appointed by the central government – would control the civil services working for the Delhi government. second case Shiv Sena was involved in the formation of the current government in Maharashtra after the “split” in the party.
contradiction of a fundamental principle
Both the judgments, which were unanimous, were written by the Chief Justice of India; They clearly explain the constitutional position. However, the Maharashtra decision is contrary to the basic principle applied in the Delhi case. The problem stems from the fact that the Maharashtra judgment upholds the Tenth Schedule of the Constitution (anti-defection law) which, at its heart, is inconsistent with the underlying structure of a parliamentary democracy.
Editorial | Morality and Majority: On the Supreme Court’s Judgment on the Political Crisis in Maharashtra
In the case of Delhi, the issue was to determine whether the civil services in the Delhi government would be answerable to the Delhi cabinet or the central government. Delhi is a union territory with a legislature, and powers are demarcated in Article 239AA. The Supreme Court said that parliamentary democracy means a government accountable to the people. The judgment clarifies that there is a triple chain of command involved: civil service officers are answerable to ministers; Ministers are accountable to the legislature; And the legislature is accountable to the voters. Breaking any link of this triple chain would be against parliamentary democracy. Hence, the civil services have to report to the Delhi cabinet.
The Maharashtra judgment dealt with a sequence of events that led to multiple petitions under the anti-defection law. Two factions of the Shiv Sena issued conflicting whips, and the Maharashtra Speaker recognized the whip of one faction representing the party (which claimed more members of the Legislative Assembly). One of the questions considered by the Court was to determine which faction had the right to appoint the leader and whip of the legislative party—and therefore, the power to issue directives binding on each member of the party in the Assembly.
The Court ruled that the Tenth Schedule distinguishes between a legislature party and a political party. The Legislature Party consists of all the MLAs/Members of Parliament belonging to the political party. It determined that the power to issue directions rested with the political party, not the legislature. Therefore, the person in charge of the political party (who may not be a member of the Legislature) will control each and every vote of the MLAs/MPs of that party. Failure to comply with such direction by any MLA/MP will lead to disqualification.
Thus, this decision further enhances the power of the party leadership over the legislature. This reinforces the idea that the MP/MLA is not answerable to the voters, but only to the party that has fielded them. In doing so, it breaks the triple chain of accountability, an underlying principle of the Delhi judgment.
In effect, the decision reduces the chances of legislators being elected on the basis of party affiliation, later defecting from that party. It is said that the Tenth Schedule is exactly against this result. Again, this position is different from the Delhi judgment. At the same time, the court says that the government is assessed daily through debate on bills in the legislature, questions raised during question hour, proposals, debates and no-confidence motions. If the legislators of the majority party in the house have to follow the instructions of the political party, then the idea of daily evaluation by the legislature becomes meaningless. The party leadership controls the vote of its MLAs on each issue, and therefore, the government is guaranteed to win every vote, including a no-confidence motion, unless an MLA is willing to give up his membership in the House.
here lies the problem
The judges had no choice but to draw such contradictory conclusions. In the Delhi judgment, they were spotting gaps in the Constitution using standard interpretation methods. In the Maharashtra decision, they were bound in their interpretation by the plain language of the Tenth Schedule. The problem lies in the very idea of the anti-defection law, which contradicts the democratic principle of accountability of legislators to their constituents.
The anti-defection law is based on the notion that any vote cast by an MP/MLA against the direction of the party is a betrayal of the electoral mandate. This is a wrong interpretation of representative democracy. While party affiliation is an important element in elections, it is not the only criterion for voters. The Supreme Court has recognized this principle in a case where it is mandatory that all candidates must disclose information relating to their criminal records, assets and liabilities and educational qualifications to allow voters to make an informed decision. If voters only care about party affiliation, why should other characteristics of candidates matter? Indeed, the election results also contradict the notion that voters only look at candidates’ party affiliations.
For example, in Karnataka, a few months after the general election in 2019, the defection of several Congress and Janata Dal (Secular) MLAs triggered by-elections; Thirteen of the defectors contested on Bharatiya Janata Party tickets, and 11 of them were re-elected. Similarly, in Madhya Pradesh, 15 of the 22 MLAs who defected won the ensuing bypolls. Voters thus supported the candidate and not the parent party that had won a few years earlier.
need a look
The constitutional framework of parliamentary democracy envisages a chain of accountability. The government’s accountability to the legislature is on a daily basis, and legislators have to justify their actions to their voters at every election. The anti-defection law destroys this design by breaking both the links of the chain. Legislators have to follow the diktat of the party, even if it comes in the way of holding the government accountable. In turn, they can easily take refuge in their lack of independence of decision-making if their constituents question them. This is clearly in violation of the central principle of parliamentary democracy, which is part of the basic structure of the Constitution.
In 1992, a five-judge bench of the Supreme Court ruled that the anti-defection law did not violate the basic structure. A larger bench would be required to re-examine the issue.
The Maharashtra judgment has referred one aspect to a seven-judge bench. The question is whether a Speaker facing removal notices can decide disqualification petitions. Two five-judge benches have reached opposite conclusions on the Speaker’s ability to make independent and impartial decisions. The seven-judge bench while hearing that case should elaborate on the question whether the anti-defection law violates the basic structure. It is time to reclaim the accountability of governments towards the people.
MR Madhavan is at PRS Legislative Research, New Delhi