Delhi’s greatest poet, Ghalib, once wrote, “Har ek baat pe kehtey ho ki tu kya hai. Tum hi kaho, ye andaaz-e- guftagu kya hai”. (On every aspect you ask me, 'what exactly are you'? You please tell me, is this a way to converse?). Delhi’s appointed Lieutenant Governor (L-G) and its elected chief minister, seemed to have been re-enacting this verse for the last three years. A judgment delivered by the Supreme Court on Wednesday has clarified their respective roles in the Constitutional scheme of things.
A Capital is the seat of the national government. It is also a city-state in its own right – one with its own local aspirations and municipal structure. The local-national tension leads to two common disputes. First, how much power and autonomy should the local government have in capital cities? Second, how should conflicts between local and national interests be resolved?
Berlin, Washington DC and Canberra are capital cities, located in three different continents. The political cultures and governmental structures of these cities/countries are decidedly varied. However, they face a friction that is familiar to federal democracies across the world. Nowhere in the world has this friction been as marked, and as contentious, as in New Delhi. Ever since the Aam Aadmi Party (AAP) came to power in 2015, the Central government – represented by the (L-G) and the state government – have been engaged in a war of attrition. A war whose only losers have been the people of Delhi.
New Delhi is a Union Territory. But not all Union Territories are alike. For example, Chandigarh has no legislature at all. In Puducherry, Parliament has created a legislature under the Government of Union Territories Act, 1963. The legislature is empowered to make laws but is subject to the over-riding power of Parliament.
Delhi forms a unique category. Its governance has been a vexatious issue since Independence. In July 1947, the Pattabhi Sitaramayya committee was set up to report on Constitutional changes in the administrative structure of the Chief Commissioner's Provinces. This included Delhi. The Committee was of the opinion that the “province which contains the metropolis of India should not be deprived of the right of self-government enjoyed by the rest of their countrymen living in the smallest of villages.”
However, members of the Drafting Committee of the Constituent Assembly, including Nehru and Ambedkar, felt that the national capital could not be placed under a local government. Deshbandhu Gupta – the sole representative of Delhi in the Assembly, made vociferous demands for full-statehood. However, ultimately the Constituent Assembly classified Delhi as a Union Territory. Numerous amendments to the Constitution have changed the nature of government in Delhi over the years. These culminated in the 69th Amendment of 1991, by which Article 239AA was introduced.
Issues Before the Court
Article 239AA of the Constitution provides for a legislative assembly in Delhi. Together with the GNCTD Act and the Transaction of Business Rules, the Article provides the legal framework within which Delhi is to be governed.
Article 239AA(3)(a) vests the Delhi Assembly with the 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 List' or in the 'Concurrent List' (except police, public order and land). Article 239AA(4) provides for a council of ministers “to aid and advise the L-G”. The proviso to the Article provides that “in case of difference of opinion between the L-G and his ministers on any matter, the L-G shall refer it to the President for decision.”
The primary dispute before the Court related to the interpretation of the phrases “any of the matters” and “aid and advise”. Additionally, the scope of the L-G’s discretion to refer matters to the President was a point in issue.
The Delhi government contended that except the three areas, i.e. police, public order and land, which the Constitution had expressly put beyond the realm of the Delhi Assembly, it was competent to make laws on all other subjects. Secondly, the L-G was bound to act in accordance with the ‘aid and advise’ of the council of ministers, in relation to these subjects.
Both contentions of the Delhi Government have been broadly accepted by the Court. Speaking through three concurring opinions – the Chief Justice for himself and Justices Sikri and Khanvilkar, and separate opinions from Justice Chandrachud and Justice Bhushan, the Court has emphasized the representative nature of Indian democracy. Representative democracy with its twin principles of collective responsibility and accountability, the Court holds, is at the heart of the Constitution.
Article 239AA which creates an elected legislature in Delhi is to be interpreted in that light. The concentration of powers in the unelected office of the L-G militates against these principles. The Court goes on to hold besides that land, police and public order, the Delhi Assembly and government have legislative and executive powers, over all other subjects.
The function of the L-G is merely that of a titular head. His approval is required on all decisions. However, he is bound to follow the ‘aid and advise’ of the executive. Simply put, the decisions of the Delhi Assembly and government shall prevail over those of the L-G (except those concerning the police, public order and land).
The decision on the third issue – that is the L-G’s power to refer the issue to the President in case of a difference of opinion, leaves some ambiguity. The majority holds that the L-G can only refer a matter to the President in “exceptional circumstances”. Justice Bhushan also holds that this power is “not to be exercised in a routine manner”. However, neither of the opinions give examples of situations in which a dispute can be escalated to the President.
A somewhat clearer exposition is found in Justice Chandrachud’s opinion. He holds that a matter may only be referred to the President when it is one of national concern - one “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 Way Ahead
In his final speech to the Constituent Assembly, Dr Ambedkar warned, – “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.
The working of a Constitution does not depend wholly upon the nature of the Constitution. The factors on which the working of those organs of the state depend on are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?”
Wednesday’s judgment clearly spells out something that most of us already knew. The sovereignty of India resides in her people. It is the people who govern themselves through representatives they elect in a fair and fair election. However, some ambiguity in the words of the Constitution, allowed the Union Government and its Lieutenant Governor, to stall the functioning of a democratically elected government for over three years.
The judgment leaves out certain loopholes which ‘a bad lot’ may yet exploit. The circumstances in which the L-G may have a difference of opinion with the government remain unclear. There is also no fixed time-frame in which the L-G has to refer a dispute to the President. Theoretically, the L-G may yet tempt to abuse his power, in order to disrupt governance. The court seemed to be alive to this and has warned both sides of the dangers of “obstructionism”.
One hopes – that the future governments – both at the State and the Centre will understand the spirit of the judgment as well as its letter. An unelected executive can only administer upon the aid and advice of an elected government.
The Ghalib ghazal with which we began this piece ended with the following verse: “Hua hai shah ka musahib phire hai itrata, varna shahr mein Ghalib ki aabru kya hai. (Having become the Emperor’s friend, he struts around. Else what status does Ghalib have in the city of Delhi)."" The closing lines carry their own message, for the elected and unelected administrators of Delhi.