Why Constitution Amendment Bill is a Direct Assault on Parliamentary Democracy

The bill is against the very structure of the Constitution & should immediately be withdrawn, writes Alok Prasanna.

The 130th Amendment and accompanying Bills take away the power of the PM or the CM to choose their Cabinet. This effectively means the end of parliamentary democracy as we know it.

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Should ministers, including the Chief Minister of a State or the Prime Minister of India, continue to hold office if they are in jail?

They shouldn’t.

Should it be mandated by law and the Constitution?

Absolutely not.

This may sound like a paradox, or worse, hypocrisy, but it is not. Not everything that is socially or politically desirable requires legal or Constitutional measures. For instance, it is socially desirable that population growth happens steadily, but can the law mandate that every woman has to have 2.1 babies in her lifetime? Of course not.

It is politically desirable to have able administrators as CMs or PMs but can the law dictate that no one be permitted to serve as PM or CM unless they have been an IAS officer or the head of a large company? Of course not.

So also with the demand that PMs, CMs, and ministers resign if they have spent 30 days in prison. It is desirable, but a legal measure undemocratic and unconstitutional. This is why I argue that the Constitution 130th Amendment Bill and the amendments to the Government of Union Territories Act, 1963, and the Jammu and Kashmir Reorganisation Act, 2019 constitute a direct assault on Parliamentary democracy in the Constitution.

They go against the basic structure of the Constitution and should immediately be withdrawn.

Understanding Westminster Parliamentary Democracy

The Westminster form of Parliamentary democracy requires the executive government to be headed by members of the legislature, ie, Members of Parliament (MPs) and Members of the Legislative Assembly of India (MLAs). The moment they cease to be MPs or MLAs, they cease to be PM, CM, or a Minister.

Famously, Indira Gandhi’s position as Prime Minister was under threat because her election as an MP was set aside by the Allahabad High Court and it was only the interim order of the Supreme Court that allowed her to continue in office. Till she imposed the Emergency.

A PM or CM continues in office as long as they enjoy a majority in the lower house of the legislature. This principle was subverted over the years through the unscrupulous use of Article 356 by Governors to unseat CMs and state governments, which enjoyed a majority in the lower house.

Parliamentary democracy, where the executive is accountable to the legislature, has been a core principle of the Constitution from the start and has been recognised as a basic feature of the Constitution even since the Kesavananda Bharati case.

The 130th Constitution Amendment Bill

All the three bills say the same thing: when the PM, CM, or a minister is imprisoned for a period of thirty days, they have to tender their resignation on the 31st day or be automatically removed from office. They can return to the post once they are released from jail.

This is fundamentally unacceptable in a parliamentary democracy, because the PM, CM, or ministers owe their position not to the President or Governor but to the people’s representatives. By virtue of being people’s representatives, disqualification is constitutionally permitted when they are no longer MPs or MLAs. In a parliamentary democracy, a PM or CM enjoying the full support of the lower house of legislature cannot be removed from office for entirely different reasons.

This was precisely the logic which informed the judgement of the Supreme Court in the SR Bommai case where it curbed the power of the Governor to dismiss a government on grounds of breakdown of constitutional machinery. Only highly exceptional situations where there is a state-wide breakdown of constitutional role (such as the one Manipur faced in the last two years) would be sufficient to dismiss a duly elected CM with a majority in the House.

The 130th Amendment and accompanying Bills dramatically reduce the threshold and in addition, take away the power of the PM or the CM to choose their Cabinet. This effectively means the end of Parliamentary democracy as we know it.

The changes proposed to Delhi, Puducherry, and Jammu & Kashmir through ordinary legislation also suffer from this constitutional infirmity. It is not as if only the State and Union legislatures are legislatures and the legislatures of UTs are just debating houses. Even though they may not have the status of a full state, they exercise law making powers under the Constitution of India and are elected by the people. This was the fundamental principle which the Supreme Court affirmed in its judgement in the cases between the AAP led Delhi government and Lieutenant Governor.

Long Lasting Consequences

There is no reason to say that the Westminster form of Parliamentary democracy is superior to all other forms of Parliamentary or even presidential democracies. It is just that the framers found it the most suited for Indian conditions and applied it here. It offers a particular set of checks and balances against executive power. 

However, over the years, the Indian system has become more “presidential” - more powers are concentrated in the hands of CMs and PMs than would be usual in such Parliamentary democracies. This does not, however, mean that India has become more of a presidential democracy - the concentration of powers has not resulted in appropriate institutional checks and balances that are the features of any presidential form of democracy. 

As many commentators have already pointed out, the role of the legislature has diminished greatly over the years and an amendment such as this will render it even more irrelevant. 

(Alok Prasanna is the Co-founder and Senior Resident Fellow at Vidhi Centre for Legal Policy. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)