The judgment of the Supreme Court in the Government of NCT Delhi versus Union of India case, resolving the dispute over the demarcation of powers between the Union Government and the Government of NCT Delhi, laid down a few key principles: first, the Legislative Assembly of NCT Delhi is competent to enact laws on all subjects in the State and Concurrent Lists, except public order, police, and land, as per Article 239AA(3)(a); second, the Government of NCT Delhi (GNCTD) enjoys executive powers over all matters over which the Delhi Legislative Assembly can legislate; third, the Lieutenant Governor (L-G) is bound by the aid and advice of GNCTD as per Article 239AA(4), and fourth, the LG may, only in exceptional cases, refer a matter over which he/she and the GNCTD have a "difference of opinion", to the President, for a binding decision.
What are these "exceptional cases" permitting the LG to intervene in GNCTD’s governance?
Sadly, the three opinions spanning over 500 pages diverge on what cases count as exceptional. Chief Justice Dipak Misra, writing for the majority, held that the LG’s power to refer "any matter" to the President must be exercised with valid and "demonstrable" grounds, "in order to protect the interest of NCT of Delhi and the principle of constitutionalism" (page 187). To permit the L-G to interfere in the interests of NCT Delhi appears inconsistent with the constitutional scheme laid out in the very same opinion: that the Legislative Assembly and GNCTD exercise governing powers in NCT Delhi over all subjects in the State and Concurrent Lists except public order, police, and land, in furtherance of democratic values, and the LG acts only in exceptional cases.
Justice Bhushan merely stated that L-G’s referral to the President cannot be a "routine affair", and shall be only limited to "extreme and unusual" cases. However, in his conclusions, he stated that the L-G’s referral to the President ought only to be for "valid reasons after due consideration, when... necessary to safeguard the interest of the Union Territory", despite having said nothing to this effect in the operative part of his judgment.
Justice DY Chandrachud reasoned at length that the L-G’s referral would be warranted only to protect "national concerns", where the difference of opinion is "so fundamental to the governance of the Union Territory that it deserves to be escalated to the President". Yet, while the L-G’s role is to be the protector of national concerns, her powers must "not destroy the essential democratic values" in Article 239AA.
With Chief Justice Misra having written for the majority, this judgment will stand for the proposition that the L-G may act in furtherance of NCT Delhi’s concerns. This appears to be irreconcilable with the view of Justice Chandrachud, who held that the L-G may act as protector of "national concerns". Perhaps one way to resolve this contradiction is to treat the majority opinion as holding that the L-G would be a protector of the concerns of NCT Delhi, in its capacity as the national capital, and not as a Union Territory. Given the strong national interests inherent in governing the national capital, and the deeper theoretical foundation of both Chief Justice Misra’s and Justice Chandrachud’s opinion of furthering democratic values, future courts ought to contextually read the majority opinion as permissive of the L-G’s powers in the interests of NCT Delhi as the national capital.
Why must the L-G’s powers be restricted to “exceptional cases”?
The majority as well as Justice Chandrachud, read the GNCTD Act, 1991, along with the Transaction of Business Rules, 1993, to conclude that the mandated political process for resolution of disagreements between the GNCTD and the L-G was by communication and dialogue. This federal arrangement between NCT Delhi and the Union Government — “collaborative federalism” as per the majority or “cooperative governance within the federal structure” as per Justice Chandrachud — is best understood in contrast with “dual federalism”.
Dual federalism, like “layered cake” is where the union and the state work within clearly defined ambits, without interfering with each other. Cooperative federalism, like “marble cake”, is where the union and the state are able to sustain their federal structure by way of a two-way process of communication, cooperation, and consensus building.
The key to cooperative federalism is the political process itself. That is to say, excesses of power by either the union or the state are limited by the political process. Needless to say, cooperative federalism is best enforced electorally, not judicially. Justice Chandrachud explains that the GNCTD-Union federal arrangement was meant to be cooperative by reading Rules 23-25, and 49-51, Transaction of Business Rules, and Section 44(1)(b) of the GNCTD Act, which focuses on communication and resolution of issues between ministers, the GNCTD and the L-G. Outside of public order, land, and police and the exceptional case of Section 41 matters, the L-G is not permitted to act independently, in her own discretion, ever, which shows the extent of collaborative work the L-G and GNCTD need to engage in.
For this reason, the political process — embodying levels of discussion between individual ministers, the GNCTD and the L-G — is as valuable as the definition of “exceptional cases”, in understanding which matters the L-G may constitutionally refer to the President.
But we had the political process even before the judgment, didn’t we?
Yes, we did. However, the dispute arose because the Union Government argued that if the Parliament could legislate in Delhi, then the Union Government through the L-G, could exercise executive powers in Delhi. While it is true that the Union Parliament retains the power to legislate in Delhi on subjects that the Delhi Legislative Assembly is empowered to legislate on (by Article 239AA(3)(b) read with Article 246(4)), the majority held that the cooperative federalism would “fall to the ground” if the Union Government could take all governance decisions in Delhi. Even graver still, it would be undemocratic if the people of Delhi were governed by the Union Government and not their own elected government.
The majority, as well as Justice Chandrachud, held that the 69th Amendment, which introduced Article 239AA in the Constitution of India, intended to create a democratic government in NCT Delhi. That the creation and powers of the Legislative Assembly were placed in the text of the Constitution shows the intent to firmly place Delhi’s democratic government outside the reach of Parliamentary will, unlike in the case of Puducherry under Article 239A. What this means is that the Parliament cannot decide to dissolve the Legislative Assembly in Delhi by merely enacting or amending a law. Should the Parliament choose to eviscerate Delhi’s legislative powers, it will have to meet a higher procedural and substantive bar — by enacting a constitutional amendment that does not destroy the “basic structure” of our Constitution.
Therefore, any ambiguity in the text of Article 239AA must be resolved keeping in mind the purpose behind introducing the provision: to bring representative democracy to Delhi. Consequently, the “executive power” of the GNCTD — to make policy decisions towards either enactment of new laws or “execution” of already operating laws — conferred by Article 239AA(4) would extend to all matters over which the Legislative Assembly of NCTD could enact laws. To say the Union also retained executive powers over Delhi would be undemocratic, for the voters of Delhi.
Put differently, if any minister, legislator or actor in the political process, either in GNCTD or in the Union Government, is uncertain how to exercise his/her powers, he/she must choose the course of action that furthers the democratic choice of the people of Delhi.
This is an invaluable theory for constitutional interpretation, going forward. At its narrowest, it means that the ambiguities in the text of our Constitution must be interpreted to further the values of representative democracy. However, to take this principle to its logical conclusion, if laws are challenged for violating our Fundamental Rights, the court will have to identify that reading of the Fundamental Right that furthers democratic values, by virtue of this decision. Future courts will have to, at the very least, tip their hats to democratic values in deciding cases where civil liberties such as privacy and the freedom to dissent are at question.
The author is a Bengaluru-based lawyer, currently working on teaching democracy and active citizenship through experiential learning. She can be reached at @MaLawdy
Updated Date: Jul 05, 2018 15:44:39 IST