India by choice, through its Constitution, has opted for popular democracy which means that the elected representatives are responsible to the people, who elected them. More appropriately the Constitution begins with the words ‘we the people of India and not we the political parties of India’, this chain of accountability has been broken by the amendment to the Tenth Schedule by Constitution (52nd Amendment) Act, 1985, making legislators accountable primarily to the party. A concept foreign to Indian Constitution slyly introduced, thus altering the basic structure of the Constitution by shifting the accountability to the political party from that of the people.
Mahatma Gandhi, as early as 1922, has demanded for the future of the country to be decided by elected representatives of the people. Neither did the framers of our Constitution intended the present outcome. Dr B R Ambedkar while introducing the draft constitution stated that the parliamentary form, the government is accountable on a daily basis through questions and motions, and can be removed any time it loses the support of the majority of members of the Lok Sabha. The drafting committee believed that India needed a government that was accountable, even at the cost of stability.
The anti-defection law undermines this accountability mechanism and we the people are no more the sovereign of this Nation. The power and prestige of being a sovereign has been usurped by the political parties in power, whose officials are not necessarily elected representatives.
Contrary to the principles of sovereignty, that the authority of a State and its government are created and sustained by the consent of its people, the very concept of the social contract is based on this principle that the government should work for the benefit of the people governed.
With this amendment, allowing elected representatives to cross over inappropriately titled anti defection Law, we are moving into what the English philosopher Thomas Hobbes in his book The Leviathan, mentioned that in the “’state of nature’ people were selfish and brutish…….”.
This shifting of the goalposts of accountability by making legislators accountable primarily to the party than to the people negates the very concept of them being elected to project issues of/to the people who elected them is nullified.
The Constitution, represents the voice of the people, crystallised and codified, the aspiration behind various movements and struggles for freedom from the British, prior to the constitutional making process, the preamble of the Indian Constitution states that ‘We the People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic……..’ implies that the people are sovereign as the governing body derives its legitimacy from the people itself.
Therefore, shifting this sovereignty from the people to the political parties by this constitutional amendment is definitely unconstitutional as it strikes at the very roots of the principles on which the Constitution is based. This basic structure doctrine created by the Supreme Court in the most significant landmark judgment, in the case of Kesavananda Bharati v/s State of Kerala and later expanded and espoused into a fundamental doctrine for interpretation of the Constitution. A doctrine on the idea that some of the provisions of the Constitution which are a part of the basic features should not be altered as that may cause loss of the very identity of the Constitution.
Unfortunately, this law has effectively converted elected representatives from being human being to a commodity suitable for sale or purchase. After all, these are gullible people who seek to get elected not for the love of people, but for the love of money and power and never for the love of the Nation. Then there are business charlatans who pose as politicians and are actively indulging in buying and selling of elected representatives. With every sale or purchase with hidden commissions, profiting themselves, they are safe and happy despite all these income, being black money, as they have the tactical support of the ruling elite. This law has in fact made murkier the political waters in India that it never be clean and politicians with honesty and character will be most rare in India. Often the Mantra of development has becomes a suitable camouflage for draining of the exchequer as many of these development projects are being unearthed to be scams and a fraud on tax payers.
One wonders what prevents the judicial minds in the higher judiciary in India from taking cognisance of this commodification of elected representatives and the resultant sabotage of the Constitution resulting in deep seated corruption almost in every act of these elected legislators.
(The writer is a professor of law and education consultant)
