4 Horrific Effect of Brute Majority on Governmental Structures

Whether BJP have influenced the decision-making? Whether any government having brute majority can affect the democratic structures. It will be analyzed in this article, and we will have study of some situations where Brute Majority has adversely affected the democratic system. We have divided the article into four headings and each heading is important for separate discussion.

From this article, you will learn the complex situation brute majority can create or we can say it has the potential to create. It is a major challenge to the plurality as India is extremely diverse, balancing interest in such society becomes challenging. India is coming out as a cultural exceptionalism and depiction of ‘Vishguru’ or Global leaders. To become such world leader, plurality needs to be addressed. However, Brute Majority and the ideology of majority party threats the creation of a plural society.

i. Brute Majority creates one party tyranny

“Investigating congressional intentions or motives is a risky business,” Chief Justice Warren declared in the 1968 case US v. O’Brien.[1] The statement embodies the customary hesitancy of the constitutional court, serving as the democratic umpire, to evaluate the legislative intent while determining the legality of an Act. This school of thought holds that the constitution cannot be applied as John Hart Ely stated, “an instrument for punishing the evil thoughts of members of the political branches.”[2]

Nearly every recent attempt at legislation in the Indian Parliament was a clear example of the tyranny of the majority in both goal and content. “Evil thoughts” went too far when it came to criminalising a civil wrong that a court had declared invalid—especially for a specific community—centralizing the Right to Information Act and giving the Centre the authority to designate anyone as a terrorist.[3] Therefore, when asked to determine the constitutional legitimacy of the most recent laws created, unmade, or reconstructed by Parliament, Indian courts may have to break from the tradition of giving the legislation credit for good intentions.[4]

Unconstitutional reasons for legislation will be a major issue for the courts to address during the judicial review process. A political philosophy will always be reflected in any legislation. It would be evident that the process of democratic lawmaking has given way to populist and centralizing legislation if one were to compare the most recent legislative initiatives with prior laws passed by Parliament.

The Indian Parliament possesses an extensive collection of statutes pertaining to various issues such as the right of street vendors (2014), the right to free and compulsory education (2009), tribal land rights (2007), the right to food security (2013), the right of people against arbitrary land acquisition (2013), and so on. Though somewhat belated, the word “socialism” found its legal resonance when it was added to the Constitution’s preamble in 1977.[5]

a. As government grows, liberty contracts

Since the far right has taken control of political organizations, the quality of legislation has tragically declined. But things weren’t all right during the previous regimes. The famous quote by Ronald Reagan reads, “As government grows, liberty contracts.”[6] Strict laws are typically an indication of a state that is expanding. These occurred both during and after the emergency. The nation also deserves an apology from the Congress party for their misbehavior and mishaps in legislation.

Thousands of activists, journalists, attorneys, and political leaders nationwide suffered at the hands of laws like TADA and POTA.[7] In the end, the capable courts declared many of them to be innocent. The “party with a difference” has put itself on the wrong side of history by following suit, which is shocking. The UK House of Commons’ political and constitutional reforms committee released a report in 2013–2014 titled “Ensuring standards in the quality of legislations.”[8]

“Political motivations were the main cause of low-quality legislation,” it stated. It cited British Member of Parliament Nick Raynsford, who said that legislative action becomes merely a “test of a government’s political standing” or “evidence of action” due to political pressure.[9] Throughout the process, there is a general disregard for the law’s long-term effects on the general public. The paper calls for pre- and post-legislative review and emphasizes the importance of the Legislative Standards Committees in guaranteeing high-quality legislation.

Similar to the 103rd Constitutional Amendment Act, which proposed a 10% quota for economic reservation only for forward communities, pre-legislative discussions, and constitutional examination were required for the current legislation on triple talaq and the right to information. Triple talaq’s legitimacy was the focus of the Supreme Court’s ruling in Shayara Bano (2017), therefore making it illegal required careful consideration.[10] In view of the Supreme Court’s rulings on the right to information, particularly in the Raj Narain (1975) and PUCL (2003) judgements, the erosion and destruction of the citizen’s right to know required scrutiny.

ii. Impact on State Governments from Brute Majority

It is evidently clear that a super majority in the central government affects the relation between the state government as the party which differ from the Central government will face political resistance. One such event is that of the Maharashtra Legislative Assembly.

Uddhav Thackeray, the chief of Shiv Sena (UBT), took aim at the BJP, stating that the people have witnessed the negative effects of having a one-party administration at the Centre and that a “mili-juli sarkar” (coalition government) is now necessary.[11]

During the annual Dussehra rally of his party on Tuesday night in Shivaji Park, Thackeray stated that the country is strong only when the chair is unstable. Attacking assembly Speaker Rahul Narwekar for postponing the disqualification of the Sena MLAs, Thackeray warned that the Supreme Court’s very existence will be called into question if the tribunal (Speaker) disregarded the ruling.[12]

“It has been about a year since we brought the disqualification case before the Supreme Court, but we keep receiving dates after date…. The Speaker has repeatedly been slapped by the Supreme Court, but he casually pats himself on the cheeks and declares, “We will present our own timetable.” You can choose when to make your decision about being disqualified. Twenty years later, fifty years later…Does the Supreme Court of India exist if the tribunal disregards it? Will this nation have a constitution or not?”

iii. Threat on Independent constitutional bodies from Brute Majority (EC Bill)

In the final days of the Parliament’s monsoon session, the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (the Bill) was unannouncedly tabled in the Rajya Sabha.[13] According to the Bill’s Statement of Objects and Reasons, the selection committee for the appointment of Chief Election Commissioners (CECs) and Election Commissioners (ECs), which was temporarily established by the Supreme Court in Anoop Baranwal v. Union of India, was to be replaced by the Bill until a law was passed by the Parliament.[14]

In addition to appointment provisions, the Bill addresses the qualifications and terms of service for CECs and other ECs, as well as the Election Commission’s corporate dealings and disposals. A clause to repeal the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (1991 Act) is also included in the bill.[15]

In actuality, though, the Bill has the effect of lessening the significance of the ruling made by the constitution court in the Anoop Baranwal case. The people’s perception of the Election Commission will be clouded by the Bill, leading them to believe that it is an executive branch agency rather than an independent constitutional entity tasked with upholding the right to free and fair elections.

A constitutional body’s independence from outside influences, particularly the executive branch, can be protected by guaranteeing equitable appointment practices, tenure and service conditions, and the ability to be removed from office only for specified reasons and after following the proper legal procedures. Nothing more is required of the Election Commission than complete independence given the character and extent of the authority granted to it by Article 324 of the Constitution.[16]

a. Mohinder Singh Gill v. The Chief Election Commissioner

The Commission has exclusive, occasionally unchecked authority over creating electoral rolls and holding elections for the Indian Parliament, State legislatures, and the offices of the President and Vice President. In Mohinder Singh Gill v. The Chief Election Commissioner, the Supreme Court expanded the meaning of the terms “superintendence, direction and control” and “conduct of all elections” found in Article 324 (1), ruling that the power could “operate in area left occupied by legislation.”[17]

If necessary, the Commission may even call for a re-election or postpone a scheduled election. Under the Representation of the People Act, 1951, it was also granted quasi-judicial authority to register political parties, recognise and de-recognize parties, assign election symbols, settle any disputes that resulted from these actions, and guarantee fair elections by putting the Model Code of Conduct into effect.[18]

Additionally, the Commission has the authority to recommend to the President or Governor that a current member of Parliament or State legislature be disqualified, depending on the circumstances. Political parties may also be instructed to produce election expenditure reports, annual audited reports, reports on voluntary donations received by the party, statements about criminal charges that are still ongoing against its candidates, and other documents.

iv. The Anti-defection problem vis-à-vis Brute Majority

The goal of the law is to prevent defection in order to create a stable administration. While the 91st Amendment has been able to prevent individual defection, mass defection has gained popularity since then. Furthermore, the rule limits the authority of individual party members by forcing them to support the decisions made by the party, which is bad for democracies. The current legislation also has a number of additional flaws. In circumstances of disqualification, it regards the speaker’s decision as final. Since most speakers are associated with a political party and their decisions cannot be seen to have been made impartially, it leaves room for prejudice to be directed towards specific groups of individuals.

Furthermore, it does not provide a deadline for the speaker to make decisions regarding disqualification, rendering the tenth schedule as non-existent as it is. According to the Supreme Court’s ruling in Keisham Meghachandra Singh v. Speaker, the speaker has three months from the date of the petition’s submission to make a final determination regarding a member’s disqualification.[19] Furthermore, the term “voluntary give up” has not been defined in the clause. The Supreme Court expanded the meaning of “voluntary give up membership” in Ravi S. Naik v. Union of India, ruling that an individual’s actions may be considered while determining whether they qualify for disqualification under this schedule.[20]

The Hon’ble SC held in Rajendra Singh Rana vs. Swami Prasad Maurya and Others that giving a letter to another party to form government constituted “voluntary give up”.[21] Furthermore, Paragraph 4 of the Schedule, which exempts mergers and splits from disqualification if they are carried out with the consent of a two-thirds majority of the involved parties, has been often abused in recent years. In 2022, eight of the eleven INC members left the party to join the BJP, avoiding disqualification because this represents more than two thirds of the party and complies with Paragraph 4 of the Tenth Schedule.

In Maharastra, the same thing happened: forty of the fifty-five Shiv Sena MLAs left the party and formed a coalition with the opposition BJP, identifying themselves as the original party and refusing to join with any other political organisation. The party is not permitted to use the original party emblem or the name Shiv Sena at this time, according to the ECI. Speakers have frequently erred when rendering unbiased judgements. The Supreme Court overturned the speaker’s ruling in D. Sudhakar v. DN Jeevaraju and Ors because it went against the natural justice principle.[22] Different nations handle disqualification in different ways.

Globally, these members are subject to party discipline rather than being disqualified in other democracies. Additionally, the anti-defection clauses severely suppress dissent, which is unfavourable for a developed democracy. Additionally, it fosters an atmosphere akin to a dictatorship in a democratic nation like India, where everyone has a constitutionally guaranteed right to freedom of speech and expression. Additionally, as every member elected from that region is aware, the choice of the party’s head takes precedence over the demands of the region. Additionally, it gives the party leader excessive influence, concentrating decision-making authority in one hand.

v. Conclusion and Potential Solutions

Combining all these four aspects, we can infer there is a negative effect of ‘Brute Majority’ on the governmental structures. In previous articles on democracy, we discussed the subversion practices. This article furthers the approach and delves deep from a single party perspective which has acquired enormous majority. All these apprehensions are from a detailed analysis of history. Like Lord Acton Statement “Power tends to corrupts and absolute power corrupts absolutely”. Therefore, there is need to encounter all these issues to ensure a healthy democratic society.

For the first point to avoid a majority party tyranny. The Supreme Court is already very diligent on this issue to curb the challenge of majority party tyranny. Recently, it has struck down EBS scheme as unconstitutional. However, the scheme was passed in 2017 and it got struck down in 2024. The time period is wide enough to create a potential damage. One thing can be done to ensure democracy remain unaffected to is remove the concept of presumption of constitutionality in electoral issues which are not a part of public policy as pleaded in EBS case.

Second, the Inter-governmental relationship can be improved by collaborative approach between state and central government. Often, the basic structure doctrine ensure there is healthy federal relationship. It strikes a balance between the federal structure. However, there is also a need to tackle the problem of democratic subversion through ordinary legislation which is right now not covered by basic structure. As we seen in above mentioned paragraph that judicial process takes a lot of time, to ensure efficiency of process steps can be taken to create a streamline method through which judicial process can be expeditious. The problem of every matter reaching to top court also need to be addressed.

Thirdly, on ECI Bill, the judgment of EBS is very relevant. This bill if becomes Act can be declared unconstitutional for posing a threat to independence of ECI. Lastly, the problem of anti-defection needs to be improved and tackled via amendment in role of speaker. In India, party system is very essential and a voter recognise through party symbol. In such scenario, handling dissent from party member cannot be sustained unless some law is there to ensure internal party politics.

Brute Majority is therefore dangerous but these challenges are not impossible to tackle. The suggestions provided in this article along with further research from Indian legal scholars can ensure the effective address of problem and solutions.

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[1] US v. O’Brien, 391 US 367 (1968).

[2] John Hart Ely, Legislative and Administrative Motivation in Constitution Law, 79 YLJ 1207, 1216 (1970).

[3] Manu Sebastian, UAPA Amendment: Why Giving Govt Power To Declare Individuals “Terrorists’ is Problematic? Live Law (Nov. 8, 2023, 12:11 PM), https://www.livelaw.in/columns/uapa-amendment-individuals-terrorists-lok-sabha-problematic-146742.

[4] O’Brien, supra note at 391.

[5] P.B. Mayer, supra note at 136.

[6] Ronald Reagan, https://www.reaganfoundation.org/ronald-reagan/reagan-quotes-speeches/farewell-address-to-the-nation-1/ (last visited Nov. 8, 2023).

[7] Ujjwal Kumar Singh, Repeal of POTA: What about Other Draconian Acts? 39 E&PW 3677, 3679 (2004).

[8] Kaleeswaram Raj, Tyranny of majority, Deccan Herald (Nov. 8, 2023, 11:21 AM), https://www.deccanherald.com/opinion/tyranny-of-majority-752836.html.

[9] House of Commons, Ensuring Standards in the Quality of Legislation, https://publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/85/120913.htm (last visited Nov. 8, 2023).

[10] Shayara Bano v. UOI, (2017) 9 SCC 1.

[11] Live Mint, https://www.livemint.com/politics/uddhav-thackeray-bats-for-mili-juli-sarkar-in-dussehra-speech-invokes-vajpayee-10-points-11698163990005.html (last visited Nov. 9, 2023).

[12] Id.

[13] Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 No. 57, Bills of Parliament, 2023 (India).

[14] Anoop Barnwal, supra note at 21.

[15] Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, No. 11, Acts of Parliament, 1991 (India).

[16] Indian Const. art. 324.

[17] Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851.

[18] The Representation of the People Act, 1951, No. 43, Acts of Parliament, 2023 (India).

[19] Keisham Meghachandra Singh v. Speaker, Civil Appeal No. 547 of 2020.

[20] Ravi S. Naik v. Union of India, AIR 1994 SC 1558.

[21] Rajendra Singh Rana vs. Swami Prasad Maurya and Others, Civil Appeal No. 765 of 2007.

[22] D. Sudhakar v. DN Jeevaraju and Ors., Civil Appeal No. 4510-4514 of 2011.