Context:

Two Constitution Benches of the Supreme Court of India delivered important judgments last week. 

• The first case decided that the Delhi government headed by the Chief Minister and not the Lieutenant Governor appointed by the central government, will control civil services working for the Delhi government. 
• The second case involved the formation of the current government in Maharashtra following the “split” in the Shiv Sena party.

Contradiction of a core principle:

• The Maharashtra judgment contradicts the core principle applied in the Delhi case. 
• The problem arises from the fact that the Maharashtra judgment adheres to the Tenth Schedule of the Constitution (the anti-defection law), which, at its heart, is incompatible with the structure underlying parliamentary democracy.
• The issue in the Delhi case was to determine whether the civil services in the Delhi government would be accountable to the Delhi cabinet or to the Union government.

Case of Delhi:

• Delhi is a Union Territory with a legislature, and the demarcation of powers is spelt out in Article 239AA.
• The Supreme Court stated that parliamentary democracy implied a government accountable to the people. 
• The judgment explains that this entails a triple chain of command: civil service officers are accountable to Ministers; Ministers are accountable to the legislature; and the legislature is accountable to the electorate.
  • Severance of any link of this triple chain would be antithetical to parliamentary democracy. 
• Therefore, the civil services will have to report to the Delhi Cabinet.

Case of Maharashtra: 

• 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. 
• Therefore, the person in charge of the political party 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.

Break of the triple chain of Accountability:

• This judgment on Maharashtra 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.

• In doing so, it breaks the triple chain of accountability, which is an underlying principle of the Delhi judgment.
• Indeed, the judgment decries the possibility of legislators being elected on the basis of their affiliation to a party, later disconnecting with that party. 

• Unlike the Maharashtra Case, in the Delhi Case, the Court states that the government is assessed daily in the legislature through debates on Bills, questions raised during Question Hour, resolutions, debates and no-confidence motions.
• 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 problem lies here:

• 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 problem lies in the very idea of the anti-defection law, which contradicts the democratic principle of accountability of legislators to their voters.

Interpretation of representative democracy:

• 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. 
• This is an incorrect interpretation of representative democracy. 
• While party affiliation is an important element in elections, it is not the sole criterion for voters. 
• The Supreme Court has recognised this principle in the case where it mandated that all candidates must disclose information related to their criminal record, assets and liabilities, and educational qualifications in order to allow voters to take an informed decision. 

Need for a relook:

• 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. 
• 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.
• In turn, 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.
• It is time to reclaim the accountability of governments to the people.

News Source: The Hindu