Two judgments and the principle of accountability Premium

While both judgments explain the constitutional position clearly, the Maharashtra judgment contradicts the core principle applied in the Delhi case

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.

Both judgments, which were unanimous, were authored by the Chief Justice of India; they explain the constitutional position clearly. However, 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. 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.

The Maharashtra judgment 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, and the Maharashtra Speaker had recognised the whip of one of the factions (which claimed more Members of the Legislative Assembly) as representing the party. One of the questions considered by the Court was to determine which faction had the right to appoint the leader and whip of the legislature party — and, therefore, have 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. Therefore, 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.

Thus, this 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. 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. It goes on to say that the Tenth Schedule guards precisely against this outcome. Again, this position is different from that taken in the Delhi judgment. There, 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 party leadership controls the vote of its legislators on each issue, and, therefore, 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.