1. Two judgments and the principle of accountability
M.R. Madhavan is with PRS Legislative Research, New Delhi.
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
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.
The problem lies here
The judges had no choice but to make such contradictory conclusions. 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.
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. If voters only cared about party affiliation, why should the other characteristics of candidates matter? Indeed, election results also 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 Congress and Janata Dal (Secular) MLAs in 2019, just months after the general election; 13 of the defectors contested on a Bharatiya Janata Party ticket, and 11 of them were re-elected. Similarly, 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 a couple of years earlier.
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.
In 1992, a five-judge Bench of the Supreme Court 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. The question is whether a Speaker facing a notice of removal can decide on 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, 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.
In reinforcing the idea that an MP/MLA is not accountable to the electorate, the Maharashtra verdict breaks the triple chain of accountability, which is an underlying principle of the Delhi judgment that dealt with the control of civil servants
2. Drive against drugs, forest encroachment not against any tribe: Manipur govt.
Anti-drug activists and policemen destroy poppy plants on a mountain slope in Imphal.
The BJP-led Manipur government has claimed its eviction and anti-drug drives — two of the factors said to be behind the Kuki-Meitei clashes — are not targeted against any community.
Data released by K. Meghachandra Singh, Superintendent of Police of the Narcotics and Affairs of Border (NAB), on Tuesday said poppy plantations on a total of 15,496.8 acres were identified between the 2017-18 and 2022-23. During this period, 2,518 people were arrested under the Narcotic Drugs and Psychotropic Substances Act, 1985. Out of the total area under poppy cultivation, 13,121.8 acres was in areas dominated by the Kuki-Chin people, 2,340 acres in Naga-majority areas and 35 acres in areas inhabited by other communities, the data said.
Poppy plantations on a total of 18,664.5 acres and cannabis plantations on a total of 20 acres were destroyed from 2017 to March 2023. Out of the total people arrested from 2017 to April 2023 under the NDPS Act, 873 belonged to the Kuki-Chin communities, 1,083 were Muslims (mostly Meitei Pangals), and 381 were Meiteis.
Data on forests
Another set of data said 291 encroachers were evicted from 20 reserve forests (RFs) and protected forests (PFs) across five districts — three of them in the non-tribal Meitei-dominated Imphal Valley — from January 1, 2017, to April 18, 2023. The data claimed Meitei people were uprooted from 16 of these RFs and PFs, Kabui Nagas from five, Kukis from four, Nepalese from three, Meitei Pangals from two and Chiru tribals from one.
“The Manipur government never targeted any particular community during eviction drives in protected areas conducted state-wide to preserve forests in view of the deteriorating climatic conditions,” Chief Minister N. Biren Singh said. “The drive against drugs too has not been any community-specific,” he added.
3. Cabinet gives approval for fertilizer subsidy of ₹1.08 lakh crore for kharif
Farm incentives: The fertilizer subsidy for one hectare is about ₹8,900, the government has said.
With fertilizer prices continuing to remain high due to global factors — such as a fall in production and hiked logistics costs, especially due to the Ukraine situation — the Centre expects this year’s fertilizer subsidy to cross ₹2.25 lakh crore. Accordingly, the Union Cabinet on Wednesday approved a ₹1.08 lakh crore subsidy for the ongoing kharif or monsoon season, Minister of Chemicals and Fertilizers Mansukh Mandaviya said.
Out of this, ₹38,000 crore will subsidise phosphatic and potassic (P&K) fertilizers, while ₹70,000 crore will go toward the urea subsidy.
Last year, the total fertilizer subsidy was about ₹2.56 lakh crore.
Mr. Mandaviya told journalists that the Centre would ensure that the prices of urea and diammonium phosphate (DAP) would remain unchanged during the season. At present, the subsidised rate of urea is ₹276 per bag and the price of DAP is ₹1,350 per bag. The decision will benefit about 12 crore farmers, the Minister added.
The total consumption of urea in the country is about 325 to 350 lakh tonnes (lt). Apart from this, 100 to 125 lt of DAP; 100 to 125 lt of NPK; and 50 to 60 lt of muriate of potash (MoP) are also sold in the country. “Farmers should get fertilizers on time. They should not be burdened at a time international prices are high,” he said.
The Minister said that the fertilizer subsidy usually ranged between ₹1 lakh crore and ₹1.25 lakh crore. “Last year, it was ₹2.56 lakh crore,” he said, adding that as cultivation takes place on 1,400 lakh hectares of land across the country, the fertilizer subsidy for one hectare is ₹8,909. “We have 12 crore farmers and one farmer gets ₹21,223 subsidy,” he said.
The actual price of a bag of DAP was ₹4,000, Mr. Mandaviya said. “But for farmers, the rate is ₹1,350 per bag. ₹2,461 per bag is the subsidy,” he explained.
4. Key climate threshold likely to be breached in 5 years: UN
Parched living: Women carrying jerrycans of water towards a makeshift camp on the outskirts of Baidoa in Somalia.
There is two-thirds chance of global temperatures exceeding the 1.5 degrees Celsius warming limit, warns World Meteorological Organization; 2023-2027 set to be hottest five-year period ever
“There’s no return to the climate which persisted during the last century.”
READ OUR EXPLAINER: IS CLIMATE CHANGE AFFECTING GLOBAL HEALTH?
It is near-certain that 2023-2027 will be the warmest five-year period ever recorded, the United Nations warned on Wednesday as greenhouse gases and El Nino combine to send temperatures soaring.
There is a two-thirds chance that at least one of the next five years will see global temperatures exceed the more ambitious target set out in the Paris accords on limiting climate change, the UN’s World Meteorological Organization (WMO) said.
The hottest eight years ever recorded were all between 2015 and 2022, with 2016 the warmest — but temperatures are forecast to increase further as climate change accelerates.
“There is a 98% likelihood that at least one of the next five years, and the five-year period as a whole, will be the warmest on record,” the WMO said.
The 2015 Paris Agreement saw countries agree to cap global warming at “well below” two degrees Celsius above average levels measured between 1850 and 1900 — and 1.5 degrees Celsius if possible.
The global mean temperature in 2022 was 1.15 degrees Celsius above the 1850-1900 average.
The WMO said there was a 66% chance that annual global surface temperatures will exceed 1.5 degrees Celsius above pre-industrial levels for at least one of the years 2023-2027, with a range of 1.1 degrees Celsius to 1.8 degrees Celsius forecasted for each of those five years.
“WMO is sounding the alarm that we will breach the 1.5C level on a temporary basis with increasing frequency,” said the agency’s chief Petteri Taalas.
“A warming El Nino is expected to develop in the coming months and this will combine with human-induced climate change to push global temperatures into uncharted territory.
“This will have far-reaching repercussions for health, food security, water management and the environment. We need to be prepared.”
El Nino is the large-scale warming of surface temperatures in the central and eastern equatorial Pacific Ocean. The weather phenomenon normally occurs every two to seven years.
Typically, El Nino increases global temperatures in the year after it develops — which in this cycle would be 2024.
Heat gets trapped in the atmosphere by so-called greenhouse gases, which are at a record high.
The major greenhouses gases are carbon dioxide, plus methane and nitrous oxide.
“The return to normal level might take even thousands of years because we already have such a high concentration of carbon dioxide, and we have lost the melting of glaciers and sea level game,” said Mr. Taalas.