Supreme Court ruling on Delhi's power tussle has lessons for both AAP, L-G

Has the judgment of the Supreme Court’s constitution bench on Wednesday finally resolved the turf war between the Aam Aadmi Party government and the lieutenant governor in Delhi? The answer to this may perhaps be found in the three erudite and elaborate judgments written by three of the five judges on the bench who concurred with one another.

It may be unfair to suggest that the bench may not prevent future conflicts between these constitutional functionaries, as it does not specify the occasions when the L-G could intervene and block a decision taken by Delhi’s council of ministers. No constitutional court could deliver a judgment which is exhaustive of remedies to deal with all the future possibilities and tussles. In laying down broad guidelines, the bench has given a roadmap for limiting the potential for future conflicts between constitutional functionaries responsible for running the administration in Delhi.

Special status

On a superficial reading of the three judgments, it would appear that the bench has not said anything new. It reiterated the previous judgment of the nine-judge bench in NDMC v State of Punjab, delivered in 1996. In this case, involving union taxation, it was held that all union territories under our constitutional scheme are not on the same pedestal and as far as the NCT of Delhi is concerned, it is not a state but remains a union territory.

Delhi, which enjoys “special features” under Article 239AA of the constitution, is in a class by itself. Having agreed with the previous bench’s decision on Delhi, being a union territory with special status, the bench took up the unresolved question of whether the L-G enjoys powers to refuse consent to any decisions of the council of ministers, and if so when. 

The Delhi high court had held on August 4, 2016, that every decision taken by the council of ministers should be communicated to the L-G for his views and that the orders in terms of the decision of the council of ministers can be issued only where no reference to the Centre was required as provided in Chapter V of the Transaction of Business Rules (TBR).  

The high court had also held that it was mandatory to communicate the decision of the council of ministers to the L-G even in relation to the matters in respect of which, power to make laws have been conferred on the legislative assembly of NCTD under Article 239AA(3)(a) of the constitution, and an order thereon can be issued only where the L-G did not take a different view. The Supreme Court, on Wednesday, has endorsed this aspect of the ruling.

The high court had also held that the L-G while exercising his discretionary powers, acts on his own judgment without seeking aid and advice of the council of ministers.   

However, the high court did not go into the question whether the L-G, in case of difference of opinion in “any matter” could refer it to the President for decision, under Article 239AA(4), and if “any matter” meant “every matter” even if they raised trivial, and not substantive issues. Therefore, the high court erroneously concluded that it was not possible to hold that the L-G was bound to act only on the aid and advice of the council of ministers.   

Wednesday’s judgment of the Supreme Court’s constitution bench corrected this anomaly. All three judgments, authored by Chief Justice Dipak  Misra, (on behalf of himself, and Justices A K Sikri and A M Khanwilkar), Justice D Y Chandrachud, and Justice Ashok Bhushan, agree that the L-G can refer the decisions of the council of ministers to the President only if he disagrees on substantive issues, and that the L-G is bound to give reasons for his disagreement. This is likely to be a powerful check on the arbitrariness of the L-G. 

Besides, Justice Ashok Bhushan has held that if the L-G does not refer a decision to the President immediately after its communication to him by the council of ministers, then the government is bound to implement the same, as the L-G’s consent is not required.

The significance of the verdict

Wednesday’s judgment of the Supreme Court is significant for several reasons which were missed by the Delhi high court in its decision in 2016 that went against the AAP government.

In the main judgment, Chief Justice Dipak Misra held that Article 239AA, inserted by 69th Amendment to the constitution and the consequent 1991 Act was passed with the aim to give the citizens of NCTD a larger say in its governance. Adopting “purposive interpretation” of the constitution, the CJI held that the expression “aid and advice” in 239AA obviates the requirement of L-G’s consent on every matter.    

Once the constitution confers a Westminster-style cabinet system, an executive government established under it should exercise all executive powers necessary to fulfil the needs that the situation warrants, and consequently, the governor has to act in accordance with the aid and advice tendered by the council of ministers with the chief minister as its head, he held.

As per Article 239AA(4), the L-G is bound by the aid and advice of his Council of Ministers in matters for which the Delhi legislative assembly has legislative powers. However, this is subject to the proviso contained in clause (4) of Article 239AA which gives the power to L-G to refer to the President for a binding decision, in case of any disagreement between him and his ministers.   

“Pragmatic and collaborative federalism will fall to the ground if Union has overriding executive powers even in matters for which Delhi legislative assembly has powers,” Misra held.

The executive power of the Union in respect of NCTD is confined to three matters in the state list for which the legislative power of the Delhi assembly has been excluded under 239AA(3)(a).  These are public order, police and land. The bench held that this limitation is imperative to ensure that NCTD gets some degree of required independence in its functioning subject to limitations imposed by the Constitution.

The bench disagreed with the Delhi Government’s contention that the expression “any matter” used in the proviso Article 239AA(4) is confined to excepted to legislative fields, namely, public order, police and land.  On the contrary, a broad or unrestricted interpretation of the term to include every difference would obstruct the idealistic smooth stream of governance, the Chief Justice held. 

“The power given to L-G under Article 239AA(4) contains the rule of exception and should not be treated as a general norm. As, unlike the governor and the President, the LG is not bound by the aid and advice of the council of ministers under this article, he has to act with constitutional objectivity. There have to be valid grounds to refer the decision of the council of ministers to the President. He has to be apprised of every decision taken by the council of ministers, but he cannot change the decision. There is no provision for consent. He has the authority to dissent, but it cannot be exercised in a routine manner. The power has been conferred to guide, discuss and see that the administration runs for the welfare of the people, and also NCTD, which enjoys special status,” the Chief Justice elaborated.

Explaining the proviso to Article 239AA(4), he said: “The difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, constitutional governance and objectivity and the nurtured and cultivated the idea of respect for a representative government. The rationale of a difference of opinion should be demonstrable and it should contain sound reason.”

The Chief Justice made it clear that requiring prior concurrence of the LG would absolutely negate the ideals of representative governance and democracy conceived for the NCTD. It is a well-recognised principle of a true democracy that power shall not remain vested in a single person and it is absolutely essential that the ultimate say in all matters shall be vested with the representative government which is responsible to give effect to the wishes of the citizens and effectively address their concerns, he reasoned.

The LG should not emerge as an adversary having a hostile attitude towards the council of ministers of Delhi, rather he should act as a facilitator, he advised.

The 1991 Act and the TBR, 1993 conceive of discussion, deliberation and dialogue. The exercise of entitlement to differ has to be based on principle and supported by cogent reasons, he further held.

If a well deliberated legitimate decision of the council of ministers is not given effect to due to an attitude to differ on the part of the LG then the concept of collective responsibility would stand negated, he cautioned.

Justice Chandrachud explained the significance of special status for Delhi thus: “The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city, the political symbolism underlying national governance.  The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.   This is the rationale for the exclusion of the subjects of public order, police and land from the legislative power and necessarily from the executive power of the NCT.”

While the status of the NCT would be of a UT, it nonetheless had a special status within the class of UTs.   Article 239AA(4) is a special provision which was adopted to establish a special constitutional arrangement for the governance of the NCT, albeit, within the rubric of UTs, he explained.

Justice Chandrachud offered the rationale for resolving disputes between the LG and the elected government thus:

“Differences constitute the essence of democratic government. The institutional process of decision making must be mature and tolerant. The theatrics which accompany the rough and tumble of politics ought not to disrupt the necessity for institutional governance which is marked by constitutional sobriety and administrative wisdom.”

The object of elevating rights, duties and modes of governance into the protective terrain of a constitutional document, Justice Chandrachud reasoned, is to precisely elevate them to a status of stability and permanence which we attribute to a constitutional provision. 

In this case, an amendment to the constitution has strengthened the basic structure by entertaining the principle of democratic governance.

The proviso to 239AA (4) must be operated and applied in a manner which facilitates and does not obstruct the governance of the NCT. “If the expression “any matter” were to be construed as “every matter or every trifling matter” that would result in bringing to a standstill the administration of the affairs of the NCT. Every conceivable difference would be referred to the President. The elected representatives would be reduced to a cipher. The Centre would govern the day-to-day affairs.  The forms of the constitution would remain, but the substance would be lost”, he warned. 

Article 239AA has been introduced as a result of the exercise of constituent power. The purpose is to confer a special status on the NCT. The LG, as the substantive part of 239AA (4) stipulates, is to act on the aid and advice of the council of ministers. A constitutional court must be averse to accepting an interpretation which will reduce these aspirations of governance to a mere form, without the accompanying substance, he reasoned.

The LG has to be conscious of the fact that the council of ministers, which tenders aid and advice, is elected to serve the people and represents both the aspirations and responsibilities of democracy. Neither the constitution nor the enabling legislation, contemplate that every decision of the executive government must receive the prior concurrence of the LG before it can be implemented, he held.

Justice Ashok Bhushan, in his separate opinion, held that in the matters where power under the proviso to Article 239AA(4) has not been exercised, aid and advice of the council of ministers is binding on the LG.

The submission that proviso to sub-clause (4) of Article 239AA envisages an extreme and unusual situation and is not meant to be a norm, is substantially correct, he held. “Concurrence of LG is not required for the decisions of the council of ministers.  Powers given in proviso to 239AA(4) is not to be exercised in a routine manner rather it is to be exercised by the LG on appropriate reasons to safeguard the interests of the UT”, he added.

The Additional Solicitor General, Maninder Singh, submitted that in the last few years there have been very few references by the LG in exercise of powers under this proviso. If so, the Supreme Court’s observation on Wednesday, that it is not to be exercised in a routine manner, is already followed in practice. The controversy, it would appear, is more academic.

To Justice Ashok Bhushan, the communication of decisions to the LG by the council of ministers is only for the purpose of enabling him to formulate an opinion as to whether there is any such difference which may require a reference. Only a reasonable time gap is to elapse, which is sufficient for the LG to scrutinise the decision. Decisions can very well be implemented by the GNCTD immediately after the decisions are communicated to LG and are “seen” by him, Justice Ashok Bhushan added. Such additions in the concurrent opinions carry a lot of weight in resolving pending disputes before smaller benches of the Supreme Court.

In the coming weeks, the significance of the Wednesday’s judgment may well resonate when smaller benches of the Supreme Court hear the pending disputes, earlier decided by the high court, on erroneous grounds. While the ruling party in Delhi may well see an opportunity to use the judgment in its political campaign against the Centre, the Centre and the LG have no alternative but to accord it due respect in practice.

Published in arrangement with The Wire.