Delhi CM Arvind Kejriwal (left) with deputy CM Manish Sisodia (right). (Photograph: PTI)

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Today, a Constitution Bench of the Supreme Court delivered its judgment in NCT of Delhi v Union of India. Previously on this blog, I had written about the political consequences of the Court’s delay in hearing this case, and Vasudev Devadasan wrote a three-part series on the main substantive issues (Part I; Part II; Part III). Readers will recall that the dispute turned upon the “special status” of the National Capital Territory of Delhi. Not a “full state” and neither just a Union Territory, Delhi has an entire article dedicated to it: 239AA, which, read with the GNCTD Act and the Allocation of Business Rules, sets up a complicated legal structure defining how governance is to be carried out in Delhi.

Put simply, this legal structure envisages two constitutional authorities – the elected Chief Minister of Delhi (at the head of the Council of Ministers) and the Lieutenant-Governor, the appointee of the central government. When Delhi began life in the colonial era as the Chief Commissioner’s Province, it was ruled by an Administrator who, in effect, ruled as an autocrat. The spread of representative government through British India passed Delhi by, and it was only after Independence that, through incremental amendments to the Constitution (culminating in Article 239AA), representative institutions came to Delhi. During this time, the position of the Administrator was transformed into the Lieutenant-Governor, and he became a representative of the central government in Delhi. This, ultimately, is what led to the constitutional ambiguity: in Indian states, the equivalent of the LG – the Governor – was little more than a titular head, bound to act upon the “aid and advice” of the elected government, with only a narrowly circumscribed sphere of discretion.

However, as Delhi moved from an autocracy to a representative government, its status as the national capital prompted the Parliament to refrain from granting it full statehood.

It is this that led to the unique situation where you had both an elected government and an LG who retained something of the old powers. And it was the precise demarcation of powers that brought the case to the Supreme Court.

At the heart of the dispute lay two articles: Article 239AA(3)(a), and Article 239AA(4). These articles state:

(3)(a) Subject to the provisions of the Constitution, the [Delhi] Legislative Assembly shall have power to  make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State of List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1,2, and 18 of the State List and Entries 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18.

(4) There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

To put matters very simply, there were two broad issues that arose. The first was the meaning of the phrase “aid and advise.” It was settled law – and also written into the Constitution through amendment – that in the case of the central government and the state governments, the words “aid and advise” – which are used in reference to the President and the Governors – mean “aid and advice that is binding.”

In other words, the President and the Governors must act in accordance with the “aid and advice” tendered to them by the Council of Ministers.

However, Delhi’s status as not-quite-a-state, and the absence of any explicit recognition that the LG had to act upon the aid and advice, allowed the Union Government to argue – and the Delhi High Court to hold – that in this regard, the LG’s position was not equivalent to the President and the Governors, and that he was not bound by the aid and advice of Delhi’s elected Council of Ministers. Let us call this Phase One: The Demarcation of Executive Power.

The second issue was about the meaning of the phrase “on any matter.” If the constitutional position was that the executive power of Delhi lay with the elected council of ministers, then the next question arose whether in all cases, the LG was authorised to have a “difference of opinion”, and escalate the matter to the President. In other words, did the phrase “any matter” mean “every matter”? Let us call this Phase Two: The Scope of the LG’s Power to Refer a Difference of Opinion to the President.

Also read: Delhi Lieutenant Governor Cannot Act As An Obstructionist In Policy Decisions: Supreme Court 

Phase One

I do not propose to go into the detailed arguments advanced in the three separate opinions, which together clock in at 535 pages. Broadly, this was the line of argument that all five judges agreed upon.

  1. Representative democracy, exercised through Parliamentary institutions, characterised by principles of collective responsibility and accountability (“the Westminster system”), is at the heart of the Constitution.
  2. Parliamentary democracy under the Indian Constitution envisages an elected, lawmaking body (“legislature”), and a council of ministers (“executive). The power of the legislature is defined under the Seventh Schedule of the Constitution, which lists out the fields under which the central and the state legislatures can pass laws. The power of the executive is co-extensive with that of the legislature: the executive can act in the same fields in which it is open to the legislature to pass laws. The head of the executive (President/Governor) acts in accordance with the “aid and advice” of the council of ministers.
  3. Article 239AA, which explicitly creates an elected legislature for Delhi, clearly envisages that, at a broad level, Delhi is to be governed in accordance with the two principles set out above. To the extent that the text of Article 239AA is open to more than one interpretation, the interpretation that furthers the Constitution’s commitment to representative democracy must be preferred (see Chandrachud J.’s concurring opinion for a particularly clear articulation of this interpretive principle).
  4. Therefore, the Council of Ministers for Delhi has the executive power to take action in all the fields in which the Delhi legislative assembly can pass laws (as per Article 239AA(3), this includes the State list (barring land, police, and law and order) and the Concurrent List of the Seventh Schedule). In this context, the aid and advice of the CoM is binding upon the LG. Under the Allocation of Business Rules, the CoM must at all times keep the LG informed, but they do not need to seek his concurrence. The purpose of information is so that the LG can decide wither to exercise the power vested in him under the proviso to Article 239AA(4) (which is what we shall discuss next).
Consequently, the judgment of the Delhi High Court, that had held that the LG was the actual head of the executive in Delhi, was incorrect.

Phase Two

In Phase One – demarcation of executive power – the Court held that, subject to the express constitutional limitations, which took land, police, and law and order out of the remit of the Delhi assembly and government (and placed other procedural limitations such as overriding federal legislative power and Presidential assent), Delhi had the character of a state: its assembly had legislative power, and its council of ministers had co-extensive executive power.

The role of the LG, to this extent, was that of a titular head: he had a right to be informed, but he was also bound by the decision of the CoM.

This, then, led to the second issue: the proviso to Article 239AA(4) gave the LG a unique power that state Governors do not possess: if the LG had a difference of opinion with the CoM, then – subject to some conciliation measures provided for in the GNCTD Act and the Allocation of Business Rules – he could escalate the matter to the President. However, all five judges were in agreement that – contrary to the submission of the Union of India – the words “any matter” could not mean “every matter.” As Chandrachud J. correctly observed, if such an interpretation was to be placed on the proviso, then the rest of the scheme of Article 239AA would  come crumbling down. All three judgments are replete with statements to the effect that, under the guise of referring a difference of opinion, the LG cannot bring governance to a standstill.

However, the question then followed logically: if “any” did not mean “every”, then what did it mean? The Government of Delhi suggested that the word “any” should be restricted to the three entries of List II that were excluded from Delhi’s legislative competence under the state list – land, police, and law and order. On every other issue, the LG would remain bound by the “aid and advice” of the CoM. However, the Court rejected this interpretation, on the basis that if Delhi’s power was altogether denuded in respect of these three subjects, the question of a “difference of opinion” never arose.

The Majority opinion, authored by the Chief Justice, did not enumerate a list of subjects upon which the LG could “differ” and escalate the matter to the President. Instead, the majority held that a reference could be made only in “exceptional” circumstances, but did not elaborate – even illustratively – on what the word “exceptional” meant. A similar issue plagued Justice Bhushan’s opinion. He observed that the LG could not interfere in “routine” matters. But what does “routine” mean? In fact, Justice Bhushan’s 123-page opinion – in which he substantively agreed with everything that the other four judges held – was undone by some very loose language in Conclusion VIII, where he noted that the LG’s power is “not to be exercised in a routine manner… [but] when it becomes necessary to safeguard the interest of the Union Territory.” “Safeguard the interest” is so broad, that it practically converts “any matter” to “every matter”, which is exactly what all five judges held was not the way to read the proviso.

It was left to Chandrachud J. – in his concurring opinion – to provide concrete shape to the “exceptional” circumstances that might trigger the proviso.

The basis of Chandrachud J.’s reasoning was that there was a reason why Delhi did not have full statehood: it was the national capital, and therefore, by its very nature, the Union Government would have a stake in it.

Article 239AA recognised the Union Government’s stake in the national capital in two distinct ways: first, it did so in the legislative sphere: by taking land, police, and law and order out of the ambit of Delhi’s legislative powers, and giving Parliament the option to exercise lawmaking power even in the state list; and secondly, it did so in the executive sphere: by giving the LG the power to refer a difference of opinion to the President. It therefore logically followed that the scope of this power would have to be defined on the same basis: the LG could only make a reference when the issue concerned national interests, and not the interests of the NCT. According to Chandrachud J:

…it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union government. The Lieutenant Governor may similarly consider it necessary to invoke the proviso to ensure compliance with the provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national capital. Financial concerns of the Union government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved.”
Justice DY Chandrachud (para 142)

Although Chandrachud J. declined to set out an “exhaustive”, subject-wise list under the proviso, the illustrative list provided in the paragraph above – within the broader rubric of “national concerns” – makes it clear how the proviso is to be understood. It is submitted that the judgment is best interpreted by taking Chandrachud J.’s concurring opinion as clarifying the meaning of the phrase “exceptional situations” in the Majority’s opinion. In other words, the proviso kicks in if there is an “exceptional situation”, and an exceptional situation is where some executive action of the Delhi government clearly impinges upon a legitimate interest of the Union government qua Union government physically based in Delhi. To take a tangible example: the opening of mohalla clinics has nothing to do with national concerns, and therefore does not fall within the scope of the proviso.

Two further points: if the LG differs with the Delhi government, must she record her reasons in writing? And is there a specific time limit within which the “difference of opinion” must be forwarded by the LG to the President? On the first issue, the judgments are silent; however, given that all the judgments stress that the difference of opinion must be reasoned and not a “contrived difference” it follows virtually as a necessary implication that the LG must reduce the reasons for differing into writing. On the second issue, as well, the judgments are silent, and I submit, regrettably so. Only in his concurrence, Justice Bhushan suggested that the difference in opinion must be referred within a “reasonable time” of the LG having “seen” it, but declined to define with any further specificity what “reasonable time” meant.

No doubt, the judges intended that such issues be resolved through “constitutional statesmanship” – a phrase that, along with its variants – recurs throughout the judgments. However, given that this case only came to Court because of breakdown in “constitutional statesmanship”, it might have been better had these loopholes been firmly closed. This would have been in tune with the Supreme Court’s closing of various other loopholes that the framers, in their mistakenly optimistic view of human nature, had left to the mercy of constitutional conventions (the most recent example being the ordering of “floor tests” within 48-72 hours of election results, in case where there is more than one claimant to Chief Ministership).

Services And The ACB

There were two specific issues that were litigated before the Court: who had control over Delhi’s civil service, and who had control over the Anti-Corruption Bureau. The former, as everyone knows, has acquired specific salience in recent days.

The Court did not return a specific ruling on either issue, and presumably, it will be settled by smaller benches.

On the first issue, my reading of the judgment is that the Delhi government clearly has control over the services. This follows from a combined reading of the majority judgment, and Chandrachud J.’s concurrence. The majority clearly held that barring the three excluded subjects – land, police, and law and order – GNCTD had co-extensive legislative and executive powers over all other fields in Lists II and III. “Services” features under Entry 41 of List II, which states: “State public services; State Public Service Commission.”

The Union of India argued that Entry 41 specifically used the word “state”. Delhi was not a “state”. Consequently, services were excluded from its ambit. This argument, however, was specifically addressed by Chandrachud J. in paragraphs 128 – 130 of his judgment, where he noted that the use of the word “state” throughout the Constitution was not dispositive; where appropriate according to context, “state” would include “union territories.” When you read this back into the majority’s clear statement that the executive power extends to every entry apart from the three specifically excluded, the conclusion that services lie within the executive power of the Delhi government becomes irresistible.

The ACB issue, however, remains unresolved; before the Court, the dispute was whether the ACB came within the definition of “police” or not. The Court expressed no opinion on this, and so this, now, must be argued afresh before a smaller bench.

Conclusion

The Supreme Court’s judgment (I take “judgment” here to refer to all three opinions) in National Capital Territory of Delhi v Union of India correctly identifies representative democracy as a fundamental feature of the Indian Constitution, and correctly interprets Article 239AA in a manner that, within the textual boundaries of the provision, strengthens representative democracy. Its analysis of the constitutional history of Delhi, and the application of constitutional principles to the interpretation of Article 239AA, repays close study. On the subject of the proviso to Article 239AA(4), however, it suffers from a lack of specificity, a defect that – I submit – can be remedied by treating Justice Chandrachud’s concurrence as clarifying the Majority.

One last point: the length. Again. 535 pages.

How unnecessary it is, once again, is conceded by the judges themselves. In paragraphs 117 and 118, Justice Bhushan notes:

  • 117. I have perused the elaborate opinion of My Lord, the Chief Justice with which I substantially agree, but looking to the importance of the issues, I have penned my own views giving reasons for my conclusions.
  • 118. I have also gone through the well researched and well considered opinion of Brother Justice D.Y. Chandrachud. The view expressed by Justice Chandrachud are substantially the same as have been expressed by me in this judgment.

That this occurs at page 531 of 535 tells its own story. If there is “substantial agreement”, then the “importance of the issues” simply does not justify penning a full-fledged separate opinion, which multiplies pages, multiplies the effort involved in reading, and also multiplies the possibilities of future confusion when lawyers use semantic distinctions between separate opinions to re-litigate issues that everyone thought were settled.

Gautam Bhatia practices law in Delhi, and provided some research assistance to the counsel representing the NCT of Delhi. He blogs about the Indian Constitution at indconlawphil.wordpress.com, where this article was originally published.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.