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EDITORIAL ANALYSIS Two judgments and the principle of accountability

 

Source: The Hindu

  • Prelims: Anti-defection law, floor test, Tenth schedule, MP/ MLA, Article 239AA, powers of speaker etc
  • Mains GS Paper II: State legislature- functioning, role and conduct of business, role of judiciary in checks and balances etc

 

ARTICLE HIGHLIGHTS

  • Two Constitution Benches of the Supreme Court delivered important judgments.
    • The Delhi government headed by the Chief Minister — and not the Lieutenant Governor will control civil services working for the Delhi government.
    • The formation of the current government in Maharashtra following the “split” in the Shiv Sena party

 

INSIGHTS ON THE ISSUE

Context

Anti Defection Law:

 

  • Its purpose was to bring stability to governments by discouraging legislators from changing parties.
  • It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
  • It allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection.
  • And it does not penalize political parties for encouraging or accepting defecting legislators.
  • 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in favor of a “merger” for it to have validity in the eyes of the law.
  • The members disqualified under the law can stand for elections from any political party for a seat in the same House.
  • The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
  • The law does not provide a timeframe within which the presiding officer has to decide a defection case.

 

Grounds of Disqualification:

 

What were the judgements:

Delhi case:

  • It was to determine whether the civil services in the Delhi government would be accountable to the Delhi cabinet or to the Union government.
  • Delhi is a Union Territory with a legislature.
    • The demarcation of powers is spelt out in Article 239AA.
  • The Supreme Court stated that parliamentary democracy implied a government accountable to the people.
  • Triple chain of command:
    • Civil service officers are accountable to Ministers
    • Ministers are accountable to the legislature
    • Legislature is accountable to the electorate.
      • Severance of any link of this triple chain would be antithetical to parliamentary democracy.
    • Civil services will have to report to the Delhi Cabinet.

 

The Maharashtra judgment:

  • It dealt with a sequence of events that included several petitions under the anti-defection law.
  • Two factions of the Shiv Sena had issued contradictory whips.
  • The Maharashtra Speaker had recognised the whip of one of the factions (which claimed more Members of the Legislative Assembly) as representing the party.
  • Court was to determine which faction had the right to appoint the leader and whip of the legislature party
    • Which fraction has the power to issue binding directions on every member of the party in the Assembly.
  • The Court ruled that the Tenth Schedule makes a differentiation between the legislature party and the political party.
    • The legislature party includes all MLAs/Members of Parliament belonging to the political party.
  • It determined that the power to issue directions was with the political party, and not the legislature party.
  • The person in charge of the political party (who may not be a member of the legislature) would control every vote of the MLAs/MPs of that party.
    • Failure to adhere to such direction by any MLA/MP would lead to disqualification.

Impact of judgment:

  • The judgment further entrenches the power of the party leadership over the legislature.
  • It reinforces the idea that the MP/MLA is not accountable to the electorate but only to the party that fielded them in the election.
  • It breaks the triple chain of accountability, which is an underlying principle of the Delhi judgment.
  • The judgment decries the possibility of legislators being elected on the basis of their affiliation to a party, later disconnecting with that party.
  • The Tenth Schedule guards precisely against this outcome: This position is different from that taken in the Delhi judgment.
  • If the legislators of the party with a majority in the House have to abide by the directions of the political party, the very idea of a daily assessment by the legislature becomes meaningless.
  • The party leadership controls the vote of its legislators on each issue
    • The government is guaranteed to win every vote, including a no-confidence motion, unless any legislator is willing to forgo their membership in the House.

 

Contradiction of a core principle:

  • Maharashtra judgment contradicts the core principle applied in the Delhi case.
  • Maharashtra judgment adheres to the Tenth Schedule of the Constitution (the anti-defection law), which is incompatible with the structure underlying parliamentary democracy.

 

Problems in the judgment and anti-defection:

  • In the Delhi judgment, they were clarifying the gaps in the Constitution by using standard interpretation methods.
  • In the Maharashtra judgment, they were bound in their interpretation by the clear language of the Tenth Schedule.
    • The idea of the anti-defection law contradicts the democratic principle of accountability of legislators to their voters.
  • The anti-defection law is based on the assumption that any vote by an MP/MLA against the party direction is a betrayal of the electoral mandate.
  • The anti-defection law upends this design by breaking both links of the chain.
    • Legislators have to obey the party diktat even if that comes in the way of holding the government accountable.
    • They can easily take refuge in their lack of freedom to make decisions if their constituents question them.
    • This is clearly a violation of the central principle of parliamentary democracy, which is part of the basic structure of the Constitution.

 

Is Party affiliation important for voters?

  • The party affiliation is an important element in elections but not the sole criterion for voters.
  • The disclosure of information related to their criminal record, assets and liabilities, and educational qualifications in order to allow voters to make an informed decision.
    • If voters only cared about party affiliation, why should the other characteristics of candidates matter?
  • Election results contradict the assumption that voters look only at the party affiliation of candidates.
  • For example, in Karnataka, by-elections were triggered due to the defection of several MLA’s in 2019
    • 13 of the defectors contested and 11 of them were re-elected.
  • In Madhya Pradesh, 15 of the 22 MLAs who defected won the ensuing by-elections.
  • The electorate thus endorsed the candidate and not the original party that had won earlier.

 

Way Forward

  • The constitutional design of a parliamentary democracy envisages a chain of accountability.
    • The accountability of the government to the legislature is on a daily basis, and legislators have to justify their actions to their voters in every election.
  • A five-judge Bench of the Supreme Court(1992) ruled that the anti-defection law did not violate the basic structure.
    • A re-examination of this issue would require a larger Bench.
  • The Maharashtra judgment has referred one aspect to a seven-judge Bench.
    • 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, must expand the question to examine whether the anti-defection law violates the basic structure.
    • It is time to reclaim the accountability of governments to the people.

 

QUESTION FOR PRACTICE

Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate may be declared void ? What remedy is available to the aggrieved party against the decision? Refer to the case laws.(UPSC 2022) (200 WORDS, 10 MARKS)