A layman’s guide to SC’s Delhi verdict

The July 4 verdict by a five-judge Supreme Court bench (three sets of judgments running into 532 pages) and Delhi chief minister Arvind Kejriwal and his party instantly hailing it as the “people’s” (meaning their government’s) unequivocal victory, was indeed historic, but also much misunderstood. Following the verdict, Mr Kejriwal’s deputy Manish Sisodia rushed with an order posting officers, but noticed the bureaucrats weren’t interested in implementing it. The shouts of initiating action against the lieutenant-governor and the officials concerned for contempt of the Supreme Court soon fizzled out.

Recently, a lawyer reportedly confessed on the social media that to avoid being dubbed as stupid, she had started reading the judgment but soon gave up, preferring the abuse to the agony of going through it. She was right. Court verdicts are meant to be read and understood by laymen with reasonable command over the language. I believe that the law by itself is not very complicated. As is now well known, Mr Kejriwal and his ministers are a frustrated lot. They have realised that despite their huge electoral victory and their impressive titles they have little power, collectively or individually, in the administration of the National Capital Territory of Delhi. They accuse Delhi’s successive lieutenant-governors of acting as the sole repositories of administrative power.

To remedy the situation, the ministers and MLAs allegedly manhandled the chief secretary at the CM’s official residence – a criminal case over this is pending. In protest, the civil servants refused to visit the homes of ministers or to carry out any verbal directions. The CM and his colleagues, feeling helpless and knowing no other way out, sat on a dharna for many days at the L-G’s house. Some resorted to a hunger strike demanding that the L-G persuade the officers to resume duty.

Meanwhile, the politicians unsuccessfully knocked on the doors of the courts. Their claim before the courts was that all states in India have legislatures consisting of elected members – they administer the states as empowered by the Constitution and state governors act on the aid and advice of the respective council of ministers. NCT Delhi too has an elected House. Therefore, they argued, the Delhi government must have powers comparable to that of other states. The Delhi high court flatly rejected this plea.

Sixty years ago, my “logic” teacher used to warn students against absurd deductions with the following words: “All cows have tails; but all animals having tails are not cows”.

In an appeal filed by the Delhi government, a five-member Supreme Court bench — a rare gathering for deciding important constitutional issues — after a month-long hearing analysed Article 239AA of the Constitution that created Delhi NCT in its present form and other provisions of our Constitution, in addition to reading a plethora of literature on legal and political philosophies, and reached a unanimous conclusion that as in the case of capitals of federal setups all over the world, Delhi NCT is not a state like, say, neighbouring Haryana – and it is historically not intended to be so.

Delhi is still a Union territory – its lieutenant-governor in reality is the “administrator” appointed and working under the President of India with powers wider than those enjoyed by the governors of other states. The court’s obvious effort was to find a legitimate role for people’s representatives — the council of ministers — without offending the mesh of constitutional and legal provisions relevant to Delhi. The court noted that the much-touted aspirations and will of Delhi’s electorate, while deserving respect, had to be subordinate to the higher form of expression of the will of the people through constitutional provisions. The court had to juggle with the onerous task of balancing the “snakes and ladders” in Delhi’s birth chart.

The separate but concurring judgment, in simple English by Justice D.Y. Chandrachud, sufficiently exposes the latent hurdles on account of the interaction of the National Capital Territory of Delhi Act 1991 (Delhi Act) and the Transaction of Business Rules framed thereunder with the Constitution in determining the real gender of NCT Delhi.

The court categorically declared that the L-G was bound by the aid and advice of the council of ministers in the matter of exercise of executive powers that are co-extensive with the powers to make laws. This declaration naturally made Mr Kejriwal gloat;
but the question is what are those matters on which the Delhi Cabinet could give its aid and advice?

While conferring the power to make laws in respect of all matters in the “State List” and “Concurrent List” — subject to specified exemptions, Article 239AA(3) has carved out another notable exception by using the qualification reading: “insofar as any such matter is applicable to Union territories”. The Chief Justice and Justice Chandrachud specifically noted this aspect, but I didn’t find any reference to it in the final order. Perhaps the provision is clear enough that it needs no exposition.

This aspect is important as Delhi’s power to legislate or to act is reduced by the quoted exception to the same level as is available to a Union territory; and a UT can legislate only to the extent permitted by a parliamentary law. Justice Chandrachud’s exhaustive analysis of the Delhi Act and the rules will help determine the net extent of legislative and executive powers available to the Delhi government to render its “aid and advice to the L-G”.

Justice Chandrachud highlighted that the President of India has the power under Section 91 of the Delhi Act to issue directions as often as he thinks, literally on any issue — and “the President” is in reality the Central government. These directions and commands under one or another legal provision can drastically restrict or curtail the powers of the Delhi government.

What is clear from the law declared by the Supreme Court is that the L-G has three masters — the President of India; the Delhi Act of 1991 along with the rules made thereunder; and the Delhi council of ministers in respect of matters within the residuary legislative powers of the Delhi Assembly — and in that order. The L-G’s power to differ on any issue, though not necessarily on every issue, remains intact.

The court, however, unanimously advised all concerned to behave better in the larger interest of the people — the best that could be done under the circumstances.

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