The recent judgment rendered by a five-judge constitution bench headed by the Chief Justice of India, has attempted to resolve a bitter confrontation between the Centre and the Delhi government which had already reached the lowest level of cynical political brinkmanship.
The trigger for such a new form of “combative federalism” in place of “cooperative federalism”, was the notice issued by the Central Government in 2015, stating that the services department of the Delhi government would fall under the Lieutenant-Governor’s purview which was in addition to three other subjects – land, police and public order.
In fact, the fundamental conflict between the two sides is rooted in Article 239 AA of the Constitution, which gives Delhi the special character of a Union territory with a legislative assembly that has a Lieutenant Governor as the administrative head. Each side tried its best to portray the other as a villain, leading the battle to court rooms.
The legal battle went up to the Apex Court to determine the nature of administrative powers of the Delhi government and the L-G. After a prolonged hearing in the Supreme Court, the Court rendered a 535-page judgement giving a win -win position to both the sides. The judgment has stood up for the will of the people and upheld constitutionalism.
At the heart of the controversy is the interpretation of discretionary nature of the reference to the President by the L-G under Article 239 AA (4). The Bench observed that the National Capital Territory (NCT) of Delhi enjoys a unique constitutional position in India’s federal structure which is contra-distinct from the general Centre-state relationship in the light of the States Re-organisation Act, 1956.
Being a Union Territory, Delhi enjoys special powers which flow from the 69th Amendment of the Constitution in 1991 that inserted Article 239 AA and 239 AB and the Government of National Capital Territory of Delhi Act, 1991.
Accordingly, the Union legislature can pass laws pertaining to all subjects in the state List and Concurrent List for Delhi which the Delhi legislative Assembly can also do (except on the subjects of land, police and public order).
The apex Court emphasised that the powers of the L-G have to be exercised on valid reasoning and on due consideration when it becomes necessary to safeguard the Union Territory. The Bench further clarified that while discharging executive powers, the Council of Ministers need not take the L-G’s concurrence but it is imperative that the L-G is informed and kept in the loop in respect of all the ‘proposals, agendas and decisions taken’.
It means that though it is mandatory for the Delhi council of ministers to communicate all its decisions to the L-G, concurrence is not necessary. The Court cautioned that the L-G should not act in a “mechanical manner” without due application of mind so as to refer every decision of the Council of Ministers to the President. Such a step has to be an exception and not the rule.
The L-G and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue and there is no room for rough-and-ready recourse.
The court also observed that the L-G should not act as an “adversary having a hostile attitude” towards the Government, but act as a facilitator, though he was not a “titular head”. Differences of opinion between them should have a “sound rationale” without there being any “phenomenon of an obstructionist”.
The majority view as expressed by the CJI held that the L-G has not been entrusted with any independent decision-making power hence he has to either act on the ‘aid and advice’ of Council of Ministers” or he is bound to implement the decision taken by the President on a reference being made by him. However, the judgment made it clear that Delhi cannot be accorded the status of a state under the constitutional scheme which has already been reiterated by the nine judge bench in NDMC v State of Punjab (1996).
The bench was quite vocal against authoritarianism and reckless exercise of powers by any constitutional authority and observed that it should never sacrifice the “conscience of the Constitution”. The CJI emphasized on “constitutional objectivity” as an idea of checks and balances so that the legislature and the executive operate only within their own precincts.
While interpreting Article 239AA of the Constitution, the bench authoritatively held that the status of the NCT of Delhi is sui generis, a class apart, and the status of the L-G is not that of a governor. He remains an administrator in a limited sense and he is bound by the “aid and advice” of the Council of Ministers.
In his concurring views, Justice D.Y. Chandrachud underlines the fact that the power of the L-G is wider than the power of the governor of a state but in democratic governance, the real power and substantive accountability is vested in elected representatives. It is the popular will of the people which has legitimacy in a democratic set up; it cannot be allowed to lose its purpose in simple semantics.
The judgment has merely reiterated the constitutional position with respect to Delhi but the most complex and controversial issues like “services, transfer postings of bureaucrats etc” were not dealt with in a proper perspective.
Further, presence of multiple civic authorities are likely to unleash further confrontations leading to more conflict between the Union and Delhi Government. Nonetheless, the Court has attempted to clear the decks to ensure that governance is not paralysed in the national capital owing to the ugly confrontation between the L-G and the chief minister.
The bench unanimously held that the spirit of constitutional morality is the guiding force for all and concluded with an idea of “constitutional renaissance”, which is not a mere revival of old ideas but a blossoming of both expressed and silent ideals of the Constitution.
The writer is an Advocate of Supreme Court of India.