Restoring sanity

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Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor Anil Baijal of Delhi during the swearing-in ceremony for new Ministers at Raj Niwas in New Delhi in May 2017. Photo: PTI

Chief Justice of India Justice Dipak Misra. "The need is for federal balance which requires mutual respect and deference to actualise the workability of a constitutional provision," he said. Photo: PTI

The Supreme Court lays down the broad principles that should govern the resolution of disputes between the Lieutenant Governor and the Council of Ministers with regard to the power struggle in Delhi. But the crisis is far from over as the key to cooperative federalism remains elusive.

Scholars of Constitution distinguish hard constitutional law from its soft version. While the first requires strict adherence to the written text, the second involves a study of constitutional practices and conventions. For example, the Indian Constitution decrees that the Governor shall be appointed by the President on the aid and advice of the Prime Minister and his Council of Ministers (hard constitutional law). Conventions such as consulting the Chief Minister before such appointment and appointing a Governor who is not native to the State are examples of soft constitutional law.

Article 239AA(3)(b) of the Constitution, to cite another instance, gives Parliament the power to make laws with respect to any matter for a Union Territory or any part thereof. But constitutional trust and silence require the Centre to exercise this power only when something is outside the scope of the Union Territory’s powers and only in times of need.

This distinction is useful in interpreting provisions that give rise to seemingly intractable turf battles between constitutional functionaries. Constitutional courts, which are entrusted with the task of resolving such disputes, recommend the pursuit of soft constitutional law as a way out of stalemates created by appointees in whom the framers of the Constitution had reposed trust.

On July 4, the Supreme Court’s Constitution Bench delivered one such landmark judgment steeped in soft constitutional law to resolve the power struggle in Delhi between the Lieutenant Governor (L.G.) and the elected Council of Ministers led by the Chief Minister.

Kejriwal addresses party workers on the issue of full statehood to Delhi at the Aam Aadmi Party's pradesh mahasammelan in New Delhi on July 1.   -  Manvender Vashist/PTI

The bench unanimously held that the executive head of the Delhi government was its Chief Minister, not the L.G. Secondly, the bench decided that the L.G. was bound by the aid and advice of the Council of Ministers on all matters in which the Delhi Assembly had the power to make laws. Thirdly, the bench clarified that the L.G. could reserve a matter for consideration by the President only in exceptional situations where there was a genuine disagreement with the Council of Ministers. The L.G. can do so only as a last resort and shall be bound by the President’s advice, the bench held. Fourthly, the bench made it clear that the Council of Ministers did not require the L.G.’s concurrence to implement its decisions even though it had the responsibility to keep him apprised of its every decision.

The issue before the court was the determination of the scope of the L.G.’s administrative powers in the light of the special status of Delhi as a Union Territory with the features of a State such as an elected Assembly and a Council of Ministers that is entrusted with the responsibility to aid and advice the L.G. In a judgment delivered on August 4, 2016, the Delhi High Court held that Delhi continued to be a Union Territory despite its special status and that the L.G. had the power to act independently of his Council of Ministers. The High Court also made the L.G.’s concurrence mandatory for all administrative decisions of the Council of Ministers. The beleaguered Aam Aadmi Party government in Delhi, led by Arvind Kejriwal, had no option but to appeal against the High Court verdict in the Supreme Court.

It was left to the Supreme Court’s five-judge Constitution Bench to discover the merits of soft constitutional law and explain its significance. The bench did so by articulating the spirit of the Constitution and through purposive interpretation. The judgment clarifies that the provisions of the Constitution need not expressly stipulate the concepts of constitutionalism, constitutional governance or constitutional trust and morality. Rather, these norms and values are inherent in various articles of the Constitution and sometimes are decipherable from the constitutional silences, the bench cited the court as having held in a recent case.

The 535-page judgment, delivered by three judges of the bench separately yet unanimously on behalf of the entire bench, reads like a lesson on the Constitution for those unfamiliar with its working. Yet, for those concerned with the lack of maturity or scruples of the political executive resulting in a deadlock in the functioning of the institutions, the Supreme Court’s prescriptive intervention came at the appropriate time though it was a belated one; the bench had reserved its judgment on December 6 last year after hearing the parties for 15 days. Chief Justice of India Dipak Misra delivered the lead judgment on behalf of himself and Justices A.K. Sikri and A.M. Khanwilkar. Justices D.Y. Chandrachud and Ashok Bhushan delivered separate but concurring judgments.

Genesis of Special Status

Union Territories in India are of three types—those without legislatures, comprising Andaman and Nicobar, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, and Chandigarh; those for which legislatures have been established by Acts of Parliament under Article 239A (Puducherry belongs to this category); and those with legislatures created by the Constitution (Articles 239AA and 239AB). The National Capital Territory of Delhi (NCTD) falls within the third category. The 69th Constitutional Amendment, 1991, established the NCTD by inserting Article 239AA, which contemplated three core concepts: a legislature; a Council of Ministers led by a Chief Minister; and an L.G. appointed by the President. The Chief Justice of India, in his judgment, adds that Puducherry cannot be compared with the NCTD as the former is solely governed by Article 239A.

The lead judgment, authored by the Chief Justice, explained the rationale of the third category thus: “The exercise of constituent power is meant to confer democratic, societal, and political powers on the citizens, who reside within the National Capital Territory of Delhi that has been granted a special status.”

Delhi’s special status has an interesting history. During colonial rule, the Government of India Act, 1919, and the Government of India Act, 1935, retained Delhi as a Centrally administered territory. On January 26, 1950, when the Constitution of India came into force, Delhi became a Part C State.

After Independence, States were classified into four—Parts A, B, C and D. Part A States comprised former Governor’s provinces of British India and were ruled by a Governor appointed by the President and had elected State legislatures. The nine Part A States were Assam, Bihar, Bombay, Madhya Pradesh, Madras, Orissa, Punjab, Uttar Pradesh and West Bengal.

Part B States consisted of eight former princely States, governed by a rajpramukh, who was appointed by the President and had an elected legislature. These were Hyderabad, Jammu and Kashmir, Madhya Bharat, Mysore, Patiala and East Punjab States Union (PEPSU), Rajasthan, Saurashtra, and Travancore-Cochin.

Part C States included former Chief Commissioners’ provinces and some princely States. Each of this was governed by a Chief Commissioner appointed by the President. The 10 Part C States were Ajmer, Bhopal, Bilaspur, Coorg, Delhi, Himachal Pradesh, Katch, Manipur, Tripura and Vindhya Pradesh.

The sole Part D territory was the Andaman and Nicobar Islands, administered by an L.G. appointed by the Central government.

The Government of Part C States Act, enacted in 1951, provided for a legislative Assembly in Delhi. Section 21(1) of the 1951 Act empowered the Legislative Assembly to make laws on all matters of List II of the Seventh Schedule of the Constitution—dealing with State subjects—except public order, police (including railway police), constitution and powers of municipal corporations and local authorities, public utility authorities, lands and buildings vested in possession of the Union situated in Delhi or New Delhi, offences against laws about subjects mentioned above, and jurisdiction of courts with respect to the above matters.

On October 19, 1956, the Constitution of India (Seventh Amendment) Act, 1956, passed to implement the provisions of the States Reorganisation Act, 1956, did away with Part A, B, C, and D States. Only two categories, namely, States and Union Territories, remained. Delhi thus became a Union Territory to be administered by an administrator appointed by the President. The Legislative Assembly of Delhi and the Council stood abolished.

In 1963, the Government of Union Territories Act was enacted to provide for Legislative Assemblies and Councils of Ministers for various Union Territories, but its provisions did not apply to Delhi. In 1966, the Delhi Administration Act was enacted to provide for limited representative government for Delhi through a Metropolitan Council comprising 56 elected members and five nominated members.

On August 20, 1966, the Ministry of Home Affairs issued an order saying that the L.G./Administrator/Chief Commissioner of Delhi shall be subject to the control of the President of India and exercise such powers and discharge the functions of a State government under the Commission of Inquiry Act, 1952, within the Union Territories.

In 1989, a committee constituted by the Ministry of Home Affairs, chaired by S. Balakrishnan (then Adviser, Ministry of Home Affairs), to make recommendations on the reorganisation of the structure for the governance of Delhi, observed that there was a conflict of interest between the need to develop the national capital and the desires of the local population for greater autonomy in the conduct of their own affairs. The committee recommended that Delhi should continue to be a Union Territory but there should be a Legislative Assembly and a Council of Ministers responsible to the Assembly with appropriate powers. It also said that to ensure stability, appropriate constitutional measures should be taken to confer on the national capital a special status.

An Aam Aadmi Party rally demanding statehood for Delhi, on June 17.   -  MANYA GOEL

Accordingly, Parliament amended the Constitution through the 69th Amendment Act, in 1991, and inserted Articles 239AA and 239AB. The amendment was accompanied by an Act of Parliament, which moulded Delhi into a constitutional hybrid so as to facilitate acquisition of certain special characteristics solely attributed to full-fledged States under the Constitution. Thus the NCTD began to enjoy far more powers than the administrative set-ups of other Union Territories.

Significance of Article 239AA

Article 239AA, which deals with special provisions with respect to Delhi, says that its Assembly shall have powers to make laws for the whole or any part of the NCT with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with regard to Entries 1 (public order), 2 (police) and 18 (land) of the State List. Three consequential Entries, namely, 64 (offences against laws), 65 (jurisdiction and powers of all courts, except the Supreme Court) and 66 (fees, excluding court fees) insofar as they deal with public order, police and land, were exempted from the Assembly’s purview.

The Constitution makes it clear that the powers so conferred on Delhi’s Assembly to make laws is not in derogation of the powers of Parliament to make laws with respect to any matter for a Union Territory. In case of any repugnancy between the law made by the Delhi Assembly and the law made by Parliament, the latter shall prevail. The former, to the extent of repugnancy, shall be void except in cases where the law made by the Assembly has been reserved for the President’s consideration and has received his assent.

But as senior counsel for the Delhi government Gopal Subramanium told the Supreme Court during the hearing, repugnancy has to be shown in order to override the law passed by a Legislative Assembly and this proves that the Constitution envisages real legislative-executive power for the Delhi government.

Clause 4 of Article 239AA was the bone of contention between the Centre and the Delhi’s Council of Ministers. This provision enables the Council of Ministers with the Chief Minister at its head to aid and advise the L.G. in the exercise of his functions in relation to matters in which the Legislative Assembly has power to make laws except when he is required by law to act in his discretion.

The proviso to Clause (4) makes it clear that in case of a difference of opinion between the L.G. and his Ministers in any matter [emphasis added] the L.G. shall refer it to the President for decision and act according to the President’s decision. Pending such decision, in case the matter is so urgent that it is necessary for him to take immediate action, the L.G. is competent to take action or to give direction as he deems necessary.

The Supreme Court found that the principle of collective responsibility is of immense significance in the context of “aid and advice” of the Council of Ministers. Counsel for the Delhi government told the court that when, after due deliberation between the Chief Minister and the Council of Ministers, a decision was taken and it was not given effect to because of the interdiction of the L.G., the value of collective responsibility that eventually got transformed into a Cabinet decision stood absolutely denuded. Besides, there would be corrosion of the essential feature of a representative government, he told the court. The court found no reason to disagree with this proposition.

Explaining the rationale of collaborative federalism, the Chief Justice held: “…the Union and the State governments should express their readiness to achieve the common objective and work together for achieving it…. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State governments.” The bench made it clear that the term “State” referred to here was applicable to the NCTD, especially with regard to its special status and the language used in Article 239AA and other articles.

Recognising that the Constitution envisages quasi-federalism (a mixture of federal and unitary elements, leaning more towards the latter), the bench added that acceptance of “pragmatic federalism” was the need of the hour as its object was to come up with innovative solutions to problems that emerged in a federal set-up.

The Chief Justice explained that the Constitution had provided for a federal balance between the powers of the Centre and the States so that there was no unwarranted or uncalled-for interference by the Centre in the powers of the States. “The need is for federal balance which requires mutual respect and deference to actualise the workability of a constitutional provision,” the Chief Justice put it succinctly.

President, Governor, and L.G.

In order to ascertain the binding nature of the aid and advice upon the President and the Governor on the one hand and upon the L.G. of Delhi on the other, the Supreme Court made a comparative analysis of the language used in Articles 74 and 163 (dealing with the President and the Governor respectively) and Article 239AA. The Constitution does not lay down any express provision that allows the President to act according to his discretion. The Governor may act in his discretion only if he is so permitted by an express provision of the Constitution. As far as the L.G. of Delhi is concerned, the Chief Justice held that he was bound by the aid and advice of his Council of Ministers in matters for which the Delhi Assembly has legislative powers.

The Chief Justice, however, noted that the proviso to clause (4) of Article 239AA retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. Relying on this analysis and the ruling of the nine-judge bench in New Delhi Municipal Council vs State of Punjab (1997), the Chief Justice held that by no stretch of imagination could the NCTD be accorded the status of a State and that the status of the L.G. of Delhi was not that of a Governor of a State; rather, he remained an administrator, in a limited sense. The NCTD is a class by itself, the Chief Justice concluded, after finding that Parliament intended to accord Delhi a sui generis status from other Union Territories.

The Legislative Assembly, the Council of Ministers and the Westminster-style Cabinet system of government brought in by the 69th Amendment highlighted the uniqueness attributed to Delhi with the aim of giving the residents of Delhi a larger say in how Delhi was to be governed, the Chief Justice reasoned. The principles of democracy and federalism, which were part of the basic structure of the Constitution, therefore, must be reinforced in the NCTD in their truest sense, he said.

The Chief Justice added that the exercise of establishing a democratic and representative form of government for the NCTD would turn futile if the government of Delhi that enjoyed the confidence of the people was not able to usher in policies and laws over which the Delhi Assembly had power to legislate for the NCTD.

The Supreme Court of India.   -  R. V. Moorthy

In conclusion, he noted an important distinction between Delhi and Puducherry. Under Article 239A, the Puduchery Assembly created by a law of Parliament may either be wholly elected or partly elected and partly nominated, whereas there was no such provision in the context of the Assembly for the NCTD. “This was a deliberate design by the Parliament,” said the Chief Justice, emphasising the representative character of the Delhi government. Therefore, the elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers to perform their functions effectively and efficiently, he reasoned.

The Chief Justice made another pertinent point with regard to the Delhi government’s exclusive powers. Clause 3(a) of Article 239AA reserves Parliament’s legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants the Delhi government executive powers in matters for which the Assembly has power to legislate. In order to give effect to the legislative policy, the Delhi government has to have coextensive executive powers, the Chief Justice held.

The ideas of collaborative federalism would fall to the ground if one were to say that the Union had overriding executive powers even in respect of matters for which the Delhi Legislative Assembly had legislative powers, the Chief Justice emphasised.

Lastly, the Chief Justice made it clear that the words “any matter” occurring in the proviso to Article 239AA(4) need not necessarily be construed to mean “every matter”, and the context in which they were used must be given due weightage. The power given to the L.G. under this proviso contained the rule of exception and should not be treated as a general norm, he clarified. The L.G. need not, in a mechanical manner, refer every decision of his Ministers to the President; he had to be guided by the concept of constitutional morality and exercise his power objectively, the Chief Justice emphasised. The rationale of difference of opinion between the L.G. and his Council of Ministers must be demonstrable and it should contain sound reason, he held. The L.G.’s discretionary powers, the Chief Justice underlined, were limited to the three matters over which the legislative power of the Delhi Assembly stood excluded by Article 239AA(3)(a).

The July 4 judgment lays down the broad principles that should govern the resolution of the disputes between the L.G. and his Council of Ministers. Specific disputes awaiting resolution will have to be heard by smaller benches of the Supreme Court. This has led to an apprehension whether the crisis in Delhi is far from over.

Finance Minister Arun Jaitley refused to concede that the judgment was a setback to the Centre. He commented in his blog: “There are several issues which had directly not been commented upon but by implication there is some indication of those issues. However, unless issues of importance are flagged, discussed and a specific opinion is rendered, none can assume that silence implies an opinion in favour of one or the other.”

Jaitley read the judgment to imply that as Delhi has no police powers, it cannot set up an investigative agency to probe crimes as had been done in the past. Secondly, he said, Delhi could not compare itself on a par with other States and, therefore, any presumption that the administration of the Union Territory cadre of services had been decided in favour of the Delhi government would be wholly erroneous.

Defiance of the judgment

Jaitley’s comment emboldened the L.G. and other civil servants to continue to defy the July 4 judgment as if it made no difference to the ongoing power struggle in the capital. On July 10, the Delhi government moved the Supreme Court for an early hearing of the pending issues, including services. The Centre refused to concede that the Delhi government had control over services (civil servants), although it is not among the three subjects (public order, police and land) specifically excluded from the ambit of the Assembly.

The Centre’s notification dated May 21, 2015, issued by the Ministry of Home Affairs, stated that the L.G. would exercise exclusive power over “services”. As the Supreme Court is yet to decide the validity of this notification specifically, the Centre continues to deprive Delhi of its power to post and transfer civil servants.

Chief Justice of India Justice Dipak Misra. "The need is for federal balance which requires mutual respect and deference to actualise the workability of a constitutional provision," he said.   -  PTI

The absence of a public service commission for the NCTD, in accordance with Entry 41 of the State List, cannot be a hindrance to the Delhi government making appointments; the Supreme Court was told during the hearing that most appointments, including Group A and B posts, were made by the State executive and not by the L.G. before the Delhi High Court’s 2016 judgment. Besides, the Delhi government made appointments in Delhi government schools.

The Delhi government’s senior counsel P. Chidambaram told the Supreme Court that Article 309—dealing with recruitment and conditions of service of persons serving the Union and the States—included Union Territories in its definition of a State. Chidambaram urged that as a separate entity, Union Territories must be vested with the authority to appoint bureaucrats who would be responsible to the State executive, facilitating the practice of good governance measures.

The Supreme Court implicitly accepted this submission while laying down the broad principles to resolve the contentious issues.

During the hearing, Justice Chandrachud conceded that full statehood could not be given to Delhi because of the national interest, but asked whether the Delhi government could be granted primacy for subjects where it had the legislative power to make laws. The Centre’s response to this was that since the effect of any subject on the national interest could not be foreseen, the ultimate control for all matters should lie with the President acting through the L.G. The bench, however, rejected this contention.

A notification issued by the Centre on May 21, 2015, stated that the Anti-Corruption Branch (ACB) set up by the Delhi government could not act against officers and servants of the Central government. The Supreme Court, therefore, has to determine whether the ACB would come under the exempted subject of police powers. Other issues such as the validity of the Delhi government’s order of inquiry into corruption in the Delhi and District Cricket Association (DDCA), the CNG Fitness Scheme, and so on, similarly await specific resolution by the Supreme Court in the light of the July 4 judgment.

During the hearing of the case, the counsel for the Delhi government compared the current status of the L.G. in the NCTD to the position of the British Viceroy in pre-Independence India. The July 4 judgment helped to change that perception to a great extent by diluting the L.G.’s powers vis-a-vis the elected government in Delhi.

Larger implications

The judgment has larger implications for India’s federal polity, going beyond the immediate concerns of the tussle between the L.G. and the Council of Ministers in Delhi. These are likely to unravel themselves, as the Narendra Modi government at the Centre plays havoc with India’s federal structure through its partisan Governors in States and Union Territories ruled by opposition parties.

In Karnataka, a Governor apparently abused the popular mandate by inviting the Bharatiya Janata Party to form the government after the Assembly elections held recently even though the party was clearly outnumbered in the Assembly. Thanks to the Supreme Court’s timely intervention, the BJP’s Chief Minister quit before facing a vote of confidence.

In Tamil Nadu, another Governor has stirred up a controversy with his frequent interference in the administration. In Puducherry, tensions between the Lieutenant Governor and the popular government are threatening to snowball into a major controversy as in Delhi.

The Supreme Court’s articulation of the spirit of federalism is sure to resonate in the coming days as India’s federal institutions come under stress.

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