Guest Post: Government of Delhi vs Union of India – III: The Executive Relationship

(After a summary of the issues and a post about the legislative relationship between Delhi and the Union of India, in this, the third post in his series about the ongoing hearings at the Supreme Court, Vasudevan Devadasan examines the heart of the dispute: the question of executive power.)

Coming to the crux of the matter between the elected government of Delhi and the Lt. Governor, this post examines the extent of the executive powers possessed by the Lt. Governor under the Constitution. Executive power in parliamentary government is a result of England’s rather unique history as a constitutional monarchy. While parliament is the law-making body, executive power is exercised by the cabinet, or the council of ministers – whose members, while being part of the legislature, also formulate and implement policy of the government in power. But because England never abolished its monarchy, there also existed a nominal executive, the Queen, in whose name all decisions of the government are taken. When the Indian Constitution was adopted, there obviously existed no equivalent to the English sovereign, but such a nominal executive was deemed necessary. Therefore, we have the President (for the central executive) and the Governor (for the States).

The Union Territories, however, depart from this model. Under Article 239(1), Union Territories are to be administered by the President (i.e., by the central government), through a delegate (the Lt. Governor). Article 239AA, however, provides something of both worlds: a Lt. Governor does exist, but – under Article 239AA(4) – so does a Council of Ministers, to “aid and advise” him in his functions. As counsel for Delhi argued – both in the High Court and, over the last few weeks, in the Supreme Court – the phrase “aid and advice” is a term of art and, under the Westminster system of government, is nothing more than a euphemism for the nominal head of the Executive being bound by that “aid and advice.” (this argument will be considered below)

The Delhi High Court concluded, however, that the Lt. Governor is not bound by the ‘aid and advice’ of the council of ministers, and that the ministers must secure the approval of the Lt. Governor on all decisions prior to implementation. In effect, this meant that several initiatives of the Delhi government were invalidated because they had not received the assent of the Lt. Governor. In the Supreme Court, the Delhi government has argued that this interpretation rendered the elected legislature and its council of ministers meaningless with respect to the governance of Delhi. The question then arises: do the Lt. Governor’s executive powers under Article 239AA allow him to overrule the decisions of the Delhi council of ministers that have the support of an elected legislature?

The ‘Westminster’ model of government that our Constitution follows (and I discuss this below), requires the council of ministers to be ‘collectively responsible’ to the elected legislature. To denude the council of ministers from possessing the executive power to govern Delhi would effectively prohibit them from fulfilling their obligation towards the legislature. Thus, the division of executive powers for Delhi must reconcile: (1) the collective responsibility of the Delhi Government towards the legislative assembly of Delhi, with (2) the unique powers granted to the Lt. Governor under Article 239AA.

The debate around executive powers in Delhi is centred around clause 4 of Article 239AA, which states:

Article 239AA (4): There shall be a Council of Ministers consisting of not more than ten per cent. 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 of 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.

Without jumping to conclusions as to whom has executive supremacy, let us first examine if it is plausible for the Lt. Governor (as the High Court suggested) to have an absolute monopoly on executive power. As executive power flows from legislative power, the conferment of legislative power on the territory of Delhi necessarily implies that the Constitution also confers some executive power. This is evidenced by the existence of a council of ministers, and the ‘Westminster’ model of governance.

The ‘Westminster’ model and collective responsibility

While the ‘Westminster’ model of government may be a slightly nebulous concept towards its fringes, it certainly contemplates two things: a nominal executive through whom executive power is exercised and an executive whose primary function is the formulation and implementation of government policy. Crucially, this latter function is premised on the confidence of the legislative branch in the executive to formulate and implement policy. Thus, in both England and India, the executive is collectively responsible, and thus controlled by the legislature. One could go so far as to say that executive power is permitted because it has the ‘tacit support’ of the majority of the legislature. The accountability of the executive is assessed on a daily basis through debates, questions, and motions on the house floor, including ultimately, votes of no-confidence.

Without getting into the areas of permissible discretion that the President, Governor, and Lt. Governor may have (this is discussed below), a consequence of this collective responsibility is that the executive functions exercised by these functionaries is done on the ‘aid and advice’ of the council of ministers. In Shamsher Singh the supreme court clarified that: because the legislature has the exclusive power to make laws, and because the council of ministers has the support of the legislature, the ‘aid and advice’ of the ministers is legally binding on the nominal executive. For example, under Article 74 the President is bound to act upon the advice of the union council of ministers. While the Governor and the Lt. Governor appear to have been given discretion to act otherwise, the text of Article 163 (‘Council of Ministers to aid and advice Governor’) and Article 239AA (4) (above) also support the understanding in Shamsher Singh precisely by making special note of the discretionary powers. If the Governor and Lt. Governor could disregard the advice of the ministers at any point, there would be no need to couch instances where they can as an exception to a general rule. To put the point another way: the words “except in so far as he is, by or under any law, required to act in his discretion”, which conclude Article 239AA(4), would make no sense if there were areas where the Lt Governor did not have discretion – i.e., where he was bound by the aid and advice of the Concil of Ministers.

Aid and advice and the proviso to cl. 4

The dispute, however, is caused by the proviso that comes immediately after. Specifically, the proviso to Article 239AA(4) authorises the Lt. Governor to differ on “any matter” with the Concil of Ministers, and refer it to the President for decision. Such a power is not given to either the President with respect to the central government, nor to the Governors with respect to the State governments. Thus, the question arises as to whom really has executive power in Delhi, the council of ministers (the Delhi Government) or the Lt. Governor (a Presidential – that is, a Central Government – appointee).

What is needed is a balancing between the collective responsibility owed to the legislative assembly of Delhi, and the special powers given to the Lt. Governor. Firstly, it is apparent that where the legislative assembly doesn’t have legislative powers, the Delhi government (executive) can’t either; in such cases, the Lt. Governor will have absolute executive powers. However, on matters that are intra vires the legislative competence of the legislature, two questions arise: do the Lt. Governor’s discretionary powers allow him to disregard the ‘aid and advice’ of the council of ministers, and does the proviso to cl. 4 of Article 239AA require the Delhi government to secure the Lt. Governor’s approval on all matters?

As noted above, a textual reading of Article 239AA (4) and the principle of collective responsibility support the understanding that ordinarily the Lt. Governor would be bound by the ‘aid and advice’ of council of ministers. The first exception to this is where a statute requires her to exercise discretion. Section 41 of the GNCTD specifically provides a list of situations where the Lt. Governor must exercise her discretion, and is thus not bound by the ‘aid and advice’ of the ministers. Section 41 in facts supports the interpretation above, restricting the discretion of the Lt. Governor to ‘matters outside the legislative competence of the Delhi assembly’, matters that concern the office of the Lt. Governor and its judicial or quasi-judicial functions. Thus, despite the Constitution permitting the Lt. Governor to disregard the ‘aid and advice’ of the council of ministers where provided for by ‘statute’, this does not result in the advice being non-binding in all other instances.

The proviso to cl. 4 of Article 239AA allows the Lt. Governor, in the case of a ‘difference of opinion’ to refer such a dispute to the President. The High Court concluded that the fact that a difference of opinion could exist meant that the ‘aid and advice’ was not binding. This interpretation effectively treats the proviso as the rule and excludes the actual text of cl. 4 proper. As noted above, the use of the words “except in so far as” indicates that the general rule of cl. 4 proper is that the Lt. Governor is bound, and this is supported by the rule of collective responsibility.

However, the proviso clearly envisions a difference of opinion where the Lt. Governor is not bound by the ‘aid and advice’ of the ministers and thus carries out a distinct constitutional function. In interpreting this instance of ‘co-extensive’ executive power it is instructive to examine the administrative relationship between the union and its federal sub-units. Article 256 states that, “The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.” Because the union’s laws apply within federal sub-units as well, the union can require that a sub-unit’s executive powers are used to ensure that union laws are enforced within the sub-unit. Thus, to ensure the smooth function of a federal government, the union executive has an interest with respect to union, or central laws promulgated by parliament.

Applying this understanding to the proviso of Article 239AA (4), where the ‘aid and advice’ of the ministers conflicts with the union’s interest with respect to laws passed by parliament, there would be a ‘difference of opinion’. It should be noted that in the case of Delhi, the union’s interest is far more intricate than in an ordinary State. Parliament has concurrent legislative power with respect to Delhi, and has exclusive power on matters relating to ‘public order’, ‘police’, and ‘land’ (entries 1, 2, and 18). Therefore, for example where the Delhi government attempted to control the police, where parliament has supremacy, the proviso would be applicable.

There also exist extraordinary circumstances where even the President or a Governor would not be bound by the ‘aid and advice’ of the council of ministers. Justice Krishna Iyer pointed out, for example, that where the government had lost the majority of the house but was refusing to quit, the Chief Executive would be obligated to disregard the advice of the ministers. Similarly, in the context of a ‘failure of constitutional machinery’ Governor would arguably be correct to disregard the advice of the ministers, as they might themselves be the reason for the failure. In the case of the President or the Governor, they themselves are the final arbiter as to when such a situation exists by virtue of the high constitutional office that they occupy. The administration of Delhi ultimately vests in the President, and if such extraordinary circumstances were to arise, the Lt. Governor would arguably be obligated to refer the matter to the President under the proviso to Article 239AA (4). Thus, the proviso could be seen as codifying a crucial residuary power of the Lt. Governor to ‘prevent the subversion of democracy’ by a government. As was noted by Justice Chandrachud in hearing the case last week, when the Lt. Governor refers a matter to the President, he not acting as the executive head of Delhi, but rather as an agent of the President. Thus, independent of the union’s interest in enforcing its laws, if a ‘difference of opinion’ of the kind described above arose, the proviso to cl. 4 might be applicable.

The second conclusion reached by the High Court based on the proviso was that to allow the Lt. Governor to refer the matter, no action could be taken unless the Lt. Governor has first approved it. Just like the President with respect to parliament, the Lt. Governor is entitled to send for all decisions passed by the council of ministers. This is clearly intended to operationalise the duty of the Lt. Governor under the proviso, to protect the union’s interests and the Constitution in Delhi. However, the consent of the Lt. Governor prior to implementation of a decision is unnecessary to operationalise the duty in the proviso. It is feasible that the government continues to function, and the Lt. Government notices a particular proposal that is likely to cause controversy, he may attempt to caution the government, and if need be refer the matter under the proviso.

The practice is one that stems from England where the Sovereign has the right to see decisions of the cabinet in order to advise or warn the council of ministers. Jennings’ note on English practice is rather instructive here: “Though George V insisted on seeing leaders of the opposition in 1910, he did so with the Prime Minister’s consent, and sought information, not assistance in defeating the government.” Unlike the English Sovereign, the President and the Lt. Governor both have strong party affiliations. This duty is thus one executed, at least at certain times, in a political atmosphere. Thus, while the Lt. Governor certainly has a right to see all proposals, he would arguably not be permitted to use this right to defeat the functioning of a government. To hold all government proposals ransom to the consent of the Lt. Governor would arguably be defeating the functioning of the government.

Conclusion

Both the council of ministers and the Lt. Governor are indirectly elected but hold the tacit support of a legislature. While the Lt. Governor’s executive power flows from both parliament and Article 239AA, it cannot be used to neutralise the Delhi government. The fact that the council of ministers is collectively responsible to the elected legislature requires that it also be given sufficient executive power to ensure smooth governance. However, the Lt. Governor is not a mere rubber stamp authority, he holds a distinct constitutional office that not only administers Delhi on the issues of public order, police, and land, and ensures the union’s interests within Delhi, but also functions as a crucial check on the powers of the Delhi government.

Advertisements

Leave a comment

Filed under Article 239, Federalism

Addendum: Contempt and the Supreme Court’s Humpty Dumpty Jurisprudence

At the time of writing yesterday’s post, the final chapter in the story remained to be told. That chapter was completed today when a three-judge bench of the Supreme Court dismissed the writ petition filed by Kamini Jaiswal, which sought an SIT investigation into allegations of judicial corruption.

As in the previous post, I do not want to go into the merits of the petitions themselves, and associated issues of judicial politics (in fact, today’s judgment doesn’t really doesn’t go into the merits of the petitions either). In the previous post, however, I had made one argument: the Chief Justice’s role as the master of the roster, with its attendant power to list matters and select benches, comes into conflict with the principle of nemo iudex (no person shall be a judge in her own cause) in that class of rare cases where the Chief Justice herself is implicated in an illegal act. In such a situation, the Chief Justice ought to be precluded from hearing the case on merits (of course), but also precluded from passing any administrative orders deciding when, and before whom, the case will be listed.

How did the three-judge bench deal with this? In paragraph 19 of its judgment, it noted that:

“As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him.”

The three-judge bench did not, however, provide any independent reasons justifying this position. It relied upon the Constitution Bench order of 10th November (which we discussed in the previous post), and then cited the judgment in D.C. Saxena vs Chief Justice of India. In that case, the Court had noted:

“When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that CJI cannot constitute benches nor he should discharge the functions of Chief Justice until the matter is decided. On appointment by the president by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice’s prerogative to constitute benches and assignment of judicial business would no hinge at the whim of a litigant.” (para 26)

Notwithstanding the legal correctness of this paragraph, D.C. Saxena was an entirely inapposite case upon which to rely. D.C. Saxena was a PIL petitioner who, after having had a PIL dismissed by the then-Chief Justice, filed a fresh PIL against the Chief Justice, asking that he be removed from office (among other things). The present case, however, involved a registered FIR and a CBI investigation, whose subject matter potentially implicated the Chief Justice. There is a world of difference between the two situations; but in any event, what is far more important is the three-judge bench’s failure to do two things: first, to show that the nemo iudex principle would not apply to the present case; and secondly, to show that there was something in the Constitution, or in any law, according to which the Chief Justice could be exempted from the operation of the principle.

On the first issue, the Bench repeated that the FIR did not name the Chief Justice, or any Supreme Court judge. However, that was nobody’s case; indeed, according to settled law, judges could not be named in FIRs without following a specific procedure. The Chief Justice’s involvement in the case did not stem from his being named in the FIR, but from the fact that the principal accused – a retired judge of the Odisha High Court – had claimed to be able to fix a Supreme Court bench that the Chief Justice was presiding over. Now, once that is established, there are two possibilities: either the principal accused was lying, or he was telling the truth. In the latter eventuality, the Chief Justice was certainly implicated; and the question of whether the principal accused was lying or not could – naturally – only be determined through an investigation (whether by the CBI or the SIT) and, eventually a trial.

Consequently, the naming of the Chief Justice in the FIR is irrelevant to the question of whether nemo iudex applies or not. And if nemo iudex did apply, the three-judge bench simply didn’t have an independent argument (apart from its dubious reliance on D.C. Saxena) as to why the Chief Justice was exempted, and for good reason: there isn’t one. There is nothing in the office or functions of the Chief Justice that justifies any such exemption; and, as I argued in the previous post, the Chief Justice’s role as the master of the roster can easily be taken over by Court No. 2 at a time like this, in the interests of the continued smooth functioning of the institution.

There is a third possibility, however: that the Chief Justice continuing to play his role as the master of the roster would not violate the nemo iudex principle. In the last post, I provided some detailed arguments about the nature of this administrative power, and why it was serious and far-reaching in character. What did the three-judge bench have to say about this? It said this:

“It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute.” (paragraph 22)

This, however, misses the point entirely. It was nobody’s case that the Chief Justice would assign a case to a Bench that would decide in his favour. Nor was it anybody’s case that the bench hearing it would be amenable to deciding in the Chief Justice’s favour. The point – as we discussed in the last post, is this: the structure of the Supreme Court with its multiple benches and its collegial nature, and the very character of judging as a human enterprise, are such that the power to decide who hears a case necessarily implies a measure of control over its outcome. There is no insinuation that the Chief Justice would abuse his power; what is at issue, however, is that the existence of the power necessarily means that in cases of this kind, when the Chief Justice exercises his role as the master of the roster, he acts as a judge in his own cause. He might be the most honest judge that ever lived, but that is not the point; the principle is not that “no person shall be a (dishonest) judge in her own cause”. It is – for excellent reasons – simply that “no person shall be a judge in her own cause.”

By misunderstanding the character and purpose of the nemo iudex principle, the three-judge bench effectively granted the office of the Chief Justice blanket immunity from its operation. The new principle now seems to be “no person (except the Chief Justice of India) shall be a judge in her own cause.”

What follows, however, is substantially worse. One of the three judges hearing the petition – Justice Khanwilkar – had also been on the bench (alongside the Chief Justice) that the principal accused in the FIR had claimed he could “fix”. Justice Khanwilkar’s presence on the bench hearing the petition on merits, therefore, created a conflict of an order of magnitude more serious than the one created by the Chief Justice’s administrative power to list cases; Justice Khanwilkar was exercising judicial power to decide the case. The inevitable implication of this is that not only the Chief Justice – but every judge of the Supreme Court – is exempted from the nemo iudex principle.

What was the Court’s response to this? It was a familiar one.

“Yet another disturbing feature which aggravates the situation is that prayer has been made, that one of us, Justice A. M. Khanwilkar, should recuse from the matter. This is nothing but another attempt of forum hunting which cannot be permitted. Rather this kind of prayer was held to be contemptuous, aggravating the contempt in the case of Dr. D C Saxena (supra).” (paragraph 28)

According to the three-judge bench, therefore:

(a) It was contempt of court to object to the Chief Justice exercising his administrative power to list a case in which he was potentially implicated, and

(b) It was contempt of court to ask Justice Khanwilkar to recuse himself from exercising judicial power in hearing a case in which he was potentially implicated.

It is fairly clear that on this grotesque definition of contempt, both this blog post – and the last one – are in contempt of court. However, this is not the definition of contempt of court in law. The Contempt of Courts Act is clear that there must be an act that “substantially interferes, or tends substantially to interfere with the due course of justice“; and furthermore, there ought to be clear evidence of such interference. In using the word “contempt” no less than twenty-one times in the course of its thirty-eight page order (and, on occasion, mistakenly equating it with “forum shopping”), the three-judge bench’s order is reminiscent of Humpty Dumpty in Alice Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

At the end of its judgment, the three-judge bench observed that:

“Let the good sense prevail over the legal fraternity and amends be made as lot of uncalled for damage has been made to the great Institution in which public reposes their faith.”

One cannot help wondering whether institutional greatness will truly be nurtured by brandishing the sword of contempt – or whether all that will lead to, in Justice Jackson’s words, will be the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”  

5 Comments

Filed under The Judiciary

New Blog: Law and Political Economy

For everyone interested in constitutionalism and the rule of law, especially from a critical perspective, the launch of the Law and Political Economy blog should be a matter of great excitement. The founders – David Grewal, Amy Kapczyinski, and Jedediah Purdy – are well-known scholars who bring a range of critical expertise to the field, ranging from international trade law to intellectual property law to political philosophy. I extract the first few paragraphs of the Manifesto here:

This is a time of crises.  Inequality is accelerating, with gains concentrated at the top of the income and wealth distributions.  This trend – interacting with deep racialized and gendered injustice – has had profound implications for our politics, and for the sense of agency, opportunity, and security of all but the narrowest sliver of the global elite. Technology has intensified the sense that we are both interconnected and divided, controlled and out of control.  New ecological disasters unfold each day.  The future of our planet is at stake: we are all at risk, yet unequally so. The rise of right-wing movements and autocrats around the world is threatening democratic institutions and political commitments to equality and openness.  But new movements on the left are also emerging.  They are challenging economic inequality, eroded democracy, the carceral state, and racism, sexism, and other forms of discrimination with a force that was unthinkable just a few years ago.

Law is central to how these crises were created, and will be central to any reckoning with them.  Law conditions race and wealth, social reproduction and environmental destruction.  Law also conditions the political order through which we must respond.

How should legal scholars and lawyers respond to this moment?  We propose a new departure – a new orientation to legal scholarship that helps illuminate how law and legal scholarship facilitated these shifts, and formulates insights and proposals to help combat them.  A new approach of this sort is, we believe, in fact emerging: a coalescing movement of “law and political economy.”

The approach we call law and political economy is rooted in a commitment to a more egalitarian and democratic society.  Scholars working in this vein are seeking to reconnect political conversations about the economic order with questions of dignity, belonging, or “recognition” and to challenge versions of “freedom” or “rights” that ignore or downplay social and economic power.

We pursue these egalitarian and democratic commitments through a set of theoretical premises. Politics and the economy cannot be separated. Politics both creates and shapes the economy. In turn, politics is profoundly shaped by economic relations and economic power.  Attempts to separate the economy from politics make justice harder to pursue in both domains.  As recent events illustrate, market society generates political conflict – conflict that is profoundly racialized and gendered. A politics that can engage this conflict must be attentive to the interplay between the ways the state creates “the market” and the ways market power feeds back into the politics, and between the hierarchies and humiliations of “private” life and the appeal of reactionary political visions.

Law gives shape to the relations between politics and the economy at every point. It is the mediating institution that ties together politics and economics.  Though legal realists and more recent critical scholars of law recognized this long ago, their insights must be revived, and given new meaning in the face of the recent history of legal scholarship.

 

 

Leave a comment

Filed under Uncategorized

No Man Shall Be a Judge in His Own Cause* (*Conditions Apply)

By now, the recent events that have convulsed the Supreme Court in an unseemly controversy have been discussed threadbare. In this post, I do not intend to talk about the broader issues of judicial politics or institutional credibility. I want to focus on something more specific, drawing from a post I wrote here a few months ago: the manner in which power has been concentrated in the office of the Chief Justice, coupled with the uniquely polyvocal character of the Indian Supreme Court, raises some serious challenges for constitutionalism and the rule of law. The events of the last few days have provided us with textbook examples of these challenges – and now is the time, if there ever was one, to think seriously about them.

In particular, I want to focus on the order passed by the Constitution Bench on November 10th, 2017. This bench was constituted on the basis of a reference from a two-judge bench that same morning. In their order, Justices Sikri and Bhushan had noted that the petitioner’s lawyer had brought to their attention an order passed the day before, in a similar writ petition, referring the matter to a Constitution Bench. Consequently, they were placing the matter before the Chief Justice for “appropriate orders”.

The background was this. Two separate petitions had been filed, asking for an impartial SIT investigation into allegations that a retired judge of the Odisha High Court (among others) had been taking bribes to “fix” a matter that was being heard in the Supreme Court. One of those petitions had been “listed” before the Court of Justices Sikri and Bhushan. The second petition was “mentioned” on Thursday, the 9th of November in Courtroom No. 2, and listed for immediate hearing on the same day at 12 45 PM. During the course of the hearing, Justice Chelameswar noted that the allegations were serious, and referred the matter to be heard by the five senior-most judges of the Supreme Court on Monday, the 13th of November. It was this referral that Justices Sikri and Bhushan took note of when the other (first) petition came up for hearing before them on the 10th.

For those unfamiliar with Supreme Court lingo: a “mentioning” refers to an oral plea by lawyers, normally before the Court sits for its regular hearings, and normally requesting that an urgent case be listed for hearing at short notice. Cases that have not already been assigned to benches are mentioned before the Chief Justice; in the present case, the Chief Justice was sitting in a Constitution Bench hearing the Delhi vs Union of India case, and therefore, as per convention, mentionings  took place in Courtroom No. 2. This was Justice Chelameswar’s court, and this was the context in which the second petition came before him.

After Justices Sikri and Bhushan referred the matter to the Chief Justice on the morning of November 10th, the Chief Justice constituted a bench to hear it that same afternoon. The bench consisted of himself and four other judges. In a short order, that bench effectively annulled the order of reference passed by Justice Chelameswar the day before.

The justification given by the bench was as follows: every Court has two “sides” – the judicial side (that is, hearing and deciding cases), and the administrative side (taking administrative decisions such as listing cases). On the judicial side, the Chief Justice is only “first among equals.” However, on the administrative side, he is the “master of the roster”; that is, “he alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.” Consequently:

“… neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.”

The Constitution Bench therefore held that “any order contrary” to these principles (i.e., Justice Chelameswar’s order) was not binding on the Chief Justice. Soon afterwards, the Chief Justice himself constituted a three-judge bench to hear the case on merits. The bench – which consisted of three judges who had sat in Friday’s Constitution Bench and signed on to the above order – heard the case today, and have reserved it for judgment tomorrow.

So far, so straightforward. The problem, however, is this: the FIR in question – on the basis of which the CBI enquiry was taking place, and which the petition sought to have replaced by an SIT – implicated the Chief Justice himself. The Chief Justice was not named in the FIR; however, the case that the accused – the retired judge of the Odisha High Court – was claiming to “fix” was being heard by a bench presided over by the Chief Justice. In other words, the principal accused claimed that he could fix a Supreme Court bench on which the Chief Justice was sitting.

Everyone is familiar with the basic legal principle of nemo judex in causa sua, which translates to “no person shall be a judge in his own cause.” It is clear, therefore, that the Chief Justice could not hear the petition on merits. However, unlike any other judge of the Supreme Court, the Chief Justice’s involvement with a petition is not limited to hearing it on merits. As we have seen, the Chief Justice being the “master of the roster” implies both that he decides who should hear it, and when it should be heard. On November 10th, the Chief Justice exercised both those powers respect to a petition on a subject matter that, at least, implicated him.

Contrary to what might appear at first blush, the Chief Justice’s powers on the administrative side are not minor matters. The power to decide when a case will be heard implies a power to delay its hearing (that did not happen in this case). And the power to decide who shall hear a case implies a non-trivial level of control over the outcome. As we have discussed before, the Supreme Court is a poly-vocal Court: twenty-six judges sit in thirteen courtrooms, speaking in different and sometimes contradictory voices. It’s trite to say that outcomes of cases are inevitably influenced by judges’ legal philosophies (I have earlier taken examples of death references being listed before abolitionist of pro-death penalty judges, and labour matters being listed before pro or anti-labour judges). There is nothing wrong or even abnormal about this – every judge has, and should have, a legal philosophy that influences how she decides cases. It is unlikely that anyone still believes in the idea of mechanical jurisprudence, which treats law as a logical syllogism with mathematically correct answers.

But while there is nothing wrong with judges having legal philosophies, we can immediately see how, in the collegial atmosphere of the Supreme Court, where judges know each other well (and indeed, the senior judges having appointed junior ones), the Chief Justice’s power to decide who shall hear a case vests substantial power in that office. Specifically, take the case under discussion: the decision of whether or not to appoint an SIT would depend, to a large extent, upon the activist or conservative proclivities of a judge, their notion of the separation of powers, the sanctity they attach to the Code of Criminal Procedure, and so on.

The above discussion should make it clear that in the present case, there was a clear and direct clash between two principles: the Chief Justice being the “master of the roster” on the administrative side, and “no person shall be a judge in his own cause.” Which one should prevail? The answer, with respect is obvious. As the Constitution Bench itself acknowledges, the “master of the roster” stems from Supreme Court Rules, and conventions. Nemo judex, on the other hand, is one of the most basic and fundamental principles of justice. The Chief Justice is “master of the roster” for instrumental reasons and administrative convenience. But without nemo judex, justice cannot exist.

What, then, is the outcome in a clash like this? The answer is: the rule of seniority. Succession to the Office of the Chief Justice is by virtue of seniority, and the presiding judge in Courtroom No. 2 is the next in line after the Chief Justice. Consequently, when the Chief Justice is precluded from acting as the “master of the roster”, that responsibility must devolve on the presiding judge in Courtroom No. 2.

Looked at this way, Justice Chelameswar’s order on the 9th of November was not procedurally irregular. The Chief Justice having been disqualified by the principle of nemo iudex, it was Courtroom No. 2 that, temporarily, became Courtroom No. 1, and the administrative powers of the Chief Justice vested in his successor. Had Justice Chelameswar’s order been passed by the Chief Justice, it would have been entirely regular; because the Chief Justice was disqualified from dealing with the matter at all, the order in question would have to be treated as an order of an (acting) Chief Justice, and deemed to be regular.

This, I would suggest, is the only way to ensure that the “master of the roster” principle does not turn into an impenetrable shield for whoever it is that occupies the office of the Chief Justice, while she occupies it. The “master of the roster” principle assumes that the incumbent Chief Justice will always be entirely honest and maintain the highest standards of integrity. Of course, that is a reasonable assumption to have; however, institutions are designed not on the basis that the occupants of high office will be honest, but with the objective of ensuring their survival on the rare occasion that an occupant is not honest.

The Constitution Bench’s interpretation of the “master of the roster” principle is unfortunate, because it effectively raises the office of the Chief Justice above the institution of the Supreme Court. It is unfortunate because it places institutional integrity in the hands of one man or one woman. It is unfortunate because it fails to ring-fence a vitally important public institution against the possibility of an implosion. And of course, it is unfortunate because it elevates an administrative rule above one of the most basic and fundamental principles of justice.

For that reason, the order merits swift reconsideration. But it is also an opportunity for all of us to reflect more deeply on the institutional structures that we have – and continue to – accept without demur or dissent.

5 Comments

Filed under Judicial Accountability, The Judiciary

Guest Post: Government of Delhi vs Union of India – II: The Legislative Relationship

(This is the second part of a series of guest posts by Vasudev Devadasan, exploring the issues in the ongoing dispute between the government of Delhi and the Union of India, being heard by a Constitution Bench of the Supreme Court.)

The last post on Delhi v Union of India (here) touched upon the unique status of Delhi under Article 239AA. Schedule 1 of the Constitution classifies territories into ‘States’ and ‘Union Territories’, with Delhi falling into the latter category. However, Delhi also has a legislature elected from its territorial constituencies. This post examines how the creation of this legislature impacts the dispute between the Delhi governor and Lt. Governor and whether merely because Delhi is not a full-fledged State, the powers of this legislature can be dismissed. By looking at arguments from a textual and structural reading of the Constitution this post tries to determine if the addition of Article 239AA to the Constitution has modified the legislative and executive supremacy that parliament ordinarily has over union territories.

To broadly summarise the relevant legal provisions:

  • Article 239 provides that all union territories shall be administered by the President acting through an administrator (the Lt. Governor in the case of Delhi).
  • Article 239A allows parliament to create, through statute, a partly or wholly elected body to function as the legislature for union territory, with such a body’s powers being specified by parliament.
  • Article 239AA (2a) and (3a) provides that Delhi shall have a fully elected legislature from its territorial constituencies. This legislature shall have the power to make laws on matters in the State List (List II) and the Concurrent List (List III) except on entries I, 2, and 18, subject to the provisions of the Constitution and as applicable to union territories.
  • Article 239AA (3b) and (3c) notes that the power of the Delhi legislature is not in derogation of parliament’s power to pass laws; and that in the event of a conflict between a law passed by parliament and a law passed by the Delhi legislature, the former shall prevail.

Legislative and Executive Power

Under a parliamentary system of government, executive power is co-extensive with legislative power. This is demonstrated by Article 73 of the Constitution which grants the central government executive power on all matters which parliament is competent to make laws on. However, the proviso to Article 73 notes that the central government will not have executive power on matters which a State government is competent to make laws on. Thus, where a legislature has been granted power to make laws on certain matters, executive power on these matters ordinarily vests itself in this legislature and is exercised by the council of ministers.

Therefore, the question of who enjoys legislative supremacy in Delhi is crucial to understanding whether the Lt. Governor or the council of ministers is the executive head of Delhi. The Delhi High Court in its initial analysis of the constitutional scheme found that the addition of Article 239AA to the Constitution did not make Delhi a State. It did not explain where exactly the legislative power with respect to Delhi arose from, rather jumping straight to the question of whether executive power was vested in the Lt. Governor or the council of ministers. It did however quote extensively from NDMC v State of Punjab where the Court had held that because Delhi was not a state, it was thus governed by Article 246(4), which grants parliament absolute legislative power on any territory that is not a State.

However, the NDMC judgement itself notes that “all Union Territories do not have the same status.” The Constitution creates three distinct types of union territories: (1) a union territory without a legislature, (2) a union territory where parliament has created a legislature by statute, and (3) a union territory where the Constitution has created a legislature (Delhi). In fact, the Constitution is rife with examples of such ‘asymmetric federalism’, where federal sub-units are treated differently from each other. Article 371 contains special provisions for multiple States, territories in the northeast have ‘autonomy arrangements’, and of course Jammu and Kashmir has a unique status.

Therefore, to argue that merely because Delhi is not a State, parliament has plenary power is insufficient, especially where the Constitution itself provides a special provision (Article 239AA) for the territory.

The argument from the text

A textual argument is not the literal meaning of the words, but rather an argument that relies solely on the text of the provision in question and the present understanding of those words. In answering the question of legislative supremacy the Court in NDMC acknowledged that Article 239AA (3a) sets up a competent legislature, but then concluded that clauses (3b) and (3c) clearly demonstrated that parliament still retained plenary legislative powers over Delhi. Recall that 239AA(3b) states that:

Nothing in sub-clause (a) shall derogate from the powers of Parliament under this constitution to make laws  with respect to any matter for a Union Territory or any part thereof.

And 3(c) provides that:

If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or , as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void.

As noted above, the Constitution contemplates three distinct types of union territories as seen from the text of Articles 239, 239A, and 239AA. The first type of union territory has no legislature and parliament plus the administrator (appointed by the President) are clearly the relevant bodies to govern such a territory. The second type of union territory is union territory is where parliament, through a statute, creates a legislature that is either elected or partly elected and specifies its powers (such as Puducherry). There are unlikely to be any allocation issues arising out of an arrangement because parliament has the power to create an arrangement suitable to it, and modify the arrangement at will. Thus, indirectly, parliament retains legislative supremacy.

The last type of union territory is that where the Constitution itself has created a wholly elected legislature. While the consequences of incorporating a provision in the Constitution are open for debate, two points come to mind. Firstly, incorporation into the constitution can signal a level of permanency, or a ‘pre-commitment’ to an idea. Even in a Constitution that is amended as often as ours, the incorporation of the Delhi legislature in Article 239AA indicates that both the existence and content of the Delhi legislature is not something the Constitution leaves to the whims of a simple majority in parliament. Otherwise Article 239A would have been sufficient. Secondly, by incorporating the Delhi legislature in the Constitution, the source of the legislature’s power is the Constitution, just like parliament or a State legislature. Thus, it is a distinct constitutional institution whose powers and relationship with parliament are governed by the provisions and norms of the Constitution. In the case of an ordinary union territory, the powers of parliament may truly be plenary, however in the case of Delhi, they would be regulated by Article 239AA. For example, if parliament were to pass a law that nominated members onto the Delhi legislature, such a statute would be ultra vires the Constitution as Article 239AA (2a) requires seats in the assembly to be filled by direct election from the constituencies of Delhi.

Coming to the question of legislative powers in governing Delhi, Article 239(3a) grants the legislative assembly of Delhi competence to pass laws on matters in List II and III. However, unlike Article 246(3) which grants a State legislature “exclusive power to make laws for such State”, Article 239AA (3a) makes no mention of exclusivity. Additionally, Clause 3b on the other hand note that this power is not in derogation of the powers parliament has over union territories. Thus, Article 239AA seems to vest legislative power in both the Delhi legislature and parliament.

The argument from structure

A structural argument doesn’t rely on the text of a specific provision. It examines the existence and position of various provisions across the entire Constitution to determine the institutional arrangements that the document contemplates and applies them to specific situations. Philip Bobbitt in explaining the structural argument cites the 1868 American case of Crandall v Nevada where a tax was imposed on individuals leaving one State and travelling to a new one. The argument goes that firstly, elected representatives needed to leave their State and travel to Washington D.C., and secondly ordinary citizens needed to do the same if they wished to approach the seat of government and plead their cause. Thus, the relationship between individuals and their elected representatives, and the national government and the State governments prohibited a tax on leaving the State. In India an often-cited example of structural reading is how the Supreme Court uses the existence various provisions to determine the ‘basic structure’ of the Constitution.

While Delhi is strictly classified a ‘Union Territory’ under the Constitution, it is important to note that the relationship between the people of Delhi and parliament is markedly different from that of other union territories. As has been noted (here), when residents of an ordinary union territory votes in national elections, they are also in effect voting for their local government. However, when the residents of Delhi votes in national elections, they are not voting for their local government. The residents of Delhi choose their local government during the Delhi legislative assembly elections (which are also administered by the Election Commission of India) in the same manner that residents of any States choose their local government.

This is not to suggest that Delhi is more akin to a State. Rather, that where the Constitution creates an elected legislature and a council of ministers, and gives them competence on certain matters, it envisages a relationship where such a legislature is empowered to fulfil the demands of the electorate. Therefore, the relationship between the electorate and an elected legislature would favour an outcome where the legislative assembly of Delhi had sufficient legislative powers to fulfil the mandate of the electorate.

However, as even Bobbit notes, structural arguments often seem indeterminate because, “while we can all agree on the presence of various structures, we fall to bickering when called upon to decide whether a particular result is necessarily inferred from their relationships.”

Conclusion

In the NDMC v State of Punjab decision, the court concluded that, “Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part VI of the Constitution. In sum, it is also a territory governed by clause (4) of Article 246.” To the Delhi High Court’s credit, it acknowledged that Delhi would be governed Article 239AA. However, it did not explore the consequences of Delhi not being governed by Article 246(4), nor the distinction between legislature created by statute and one created by the Constitution. Article 239AA creates a delicate power sharing arrangement with respect to legislative power that is likely better understood in practice than from the text of the Constitution.

We noted above that executive power flows from legislative power. Therefore, understanding that both parliament and the Delhi legislature have concurrent legislative power is an important step in understanding where executive power is vested. Clearly it is not an open-shut case of parliament having plenary powers and thus the Lt. Governor being the sole executive head, as might have been the case with an ordinary union territory. To understand the impact of this concurrent legislative power on executive power is the next step.

While a decision of the Supreme Court will certainly provide a definitive answer as to how Delhi is to be governed, it is worth questioning the value in this. Often the Constitution, unable to secure political consensus, creates a set of constitutive rules that enables deliberation on the matter in the future. Thus, Article 239AA could be seen as setting out the de-minimis rules which, while leaving the question of ultimate legislative and executive supremacy unanswered, create a framework of deliberation through which the question can be answered on an ongoing basis through the constitutional practice of the relevant actors. Article 239AA may tell us only so much about how Delhi is to be governed, but the political fact that Delhi has been governed under the provision through deliberation and disagreement for over two decades without a Supreme Court verdict is to be noted.

1 Comment

Filed under Article 239, Federalism

Guest Post: Government of Delhi vs Union of India

(This is a guest post by Vasudev Devadasan.)

We have already discussed on this blog (here) the long delays that the Delhi v Union of India case has been subject to. With the hearings due to commence this Wednesday, this post will provide a recap of the constitutional issues raised by the Delhi Government’s tussle with the Centre, and the Delhi High Court’s decision in favour of the latter.

Soon after being elected, the Delhi government had taken issue with a Home Ministry notification that allowed the Lt. Governor to make appointments relating to ‘services’ (under this, the Chief Secretary had been appointed without the Chief Minister of Delhi being consulted.) The dispute escalated when several initiatives of the Delhi government (including commissions of inquiry set up to investigate corruption in certain sectors) were attacked on the grounds that they hadn’t received approval of the Lt. Governor. The controversy stemmed from Delhi’s unique position under Article 239AA and centred around the role of the Lt. Governor of Delhi (a central government appointee).

Barring a few exceptions (e.g. police and land) Article 239AA gives the legislative assembly of Delhi competence to pass laws on matters in List II and III of the seventh schedule. Notably, the appointment of the Chief Secretary fell under Entry 41 of List II (‘services’). The Delhi government argued that on matters which it was competent to legislate on, the Lt. Governor was bound to act on the ‘aid and advice’ of the elected government. Additionally, as he was a ‘rubber-stamp’ authority, there was no need for the Delhi government to secure the Lt. Governor’s approval on these matters. Thus, the Home Ministry notification empowering the Lt. Governor to make appointments was ultra vires, and the initiatives taken by the Cabinet were valid irrespective of whether it received the Lt. Governor’s approval.

The central government contended that Article 239AA did not take away the legislative supremacy of parliament to pass laws with respect to Union Territories (the default position under the Constitution) and the Lt. Governor, as an appointee of the central government, was the executive head of Delhi. Thus, the Lt. Governor was not bound to act on the ‘aid and advice’ of the Delhi government and every decision passed by the Cabinet was subject to the Lt. Governor’s approval.

The relevant provisions of Article 239 and 239AA are as follows:

  • Article 239 (1): Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
  • Article 239AA (2a): There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
  • Article 239AA (3): Subject to the provisions of this Constitution, the 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 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 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
  • Article 239AA (4): There shall be a Council of Ministers consisting of not more than ten per cent. 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 of 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 […]

Determining the scope of this Article, the Delhi High Court (the correctness of which will now be argued this week) effectively threw the book at the Delhi government, upholding all the principal submissions of the Centre and holding that the Lt. Governor is the executive head of Delhi. Let us examine the crux of the High Court’s reasoning.

Constitutional Position of Delhi

The High Court spent a notable amount of time emphasising that Delhi continues to be a Union Territory and not a “state”. The Centre was also understandably keen to highlight this narrative, because Article 246(4) grants parliament plenary power to legislate on all three lists of the seventh schedule for union territories, and Article 239(1) vests the administration of union territories in the President. Thus, it stands to reason that if Delhi were a ‘union territory’ simpliciter there would be no question of whether the Lt. Governor did or did not have complete executive powers.

However, Delhi is not a ‘union territory’ simpliciter. To provide some context, when the Constitution was originally enacted India was divided into Part A states, Part B states, Part C states, and the Andaman and Nicobar Islands. Delhi was a ‘Part C’ state alongside the likes Coorg, Himachal Pradesh, Manipur and Tripura. The States Reorganisation Commission ultimately removed the very conception of a ‘Part C’ state as ‘neither financially viable nor functionally efficient’. Thus, the Constitution, after the Seventh Amendment, came to recognise only two types of territories: states and union territories.

However – and this is the bone of contention – with the insertion of Article 239AA, Delhi entered a unique constitutional phase. The statement of objects and reasons attached to the bill inserting Article 239AA notes that while Delhi continues to be a union territory, it must be given an elected government capable of responding to the concerns of its citizens.

In its judgment, the High Court quoted extensively from the case of NDMC v Punjab to conclude that while Delhi has a unique setup for a union territory, ‘it is certainly not a state’ and is thus governed by Article 246(4) (which allows Parliament to make laws for any area included within a “state”). However, to acknowledge that the Constitution itself creates a legislature accountable to the people of Delhi, and yet argue that because Delhi continues to be a union territory parliament must retain plenary power on all matters, is attempting to push a square peg into a round hole. One has only to look at the other territories that were originally ‘Part C’ states to recognise that there exists a certain fluidity in the classification of territories. Article 239AA itself acknowledges the unique situation of Delhi by providing both parliament (Article 239AA (3)) and the President (proviso to Article 239AA(4)) a stake in the administration of Delhi. Thus, the contours of Article 239AA are a better place to look if understanding the constitutional position of Delhi is what is required.

‘Aid and advise’

Delhi has three political players: the elected legislative assembly, the council of ministers who are accountable to the legislative assembly, and the Lt. Governor, in whose name all decisions regarding the governance of Delhi are taken. A similar setup exists for Presidents at the national level and Governors at the state level. In examining the interaction between these actors, the Supreme Court in Shamsher Singh held that the President and the Governor are legally bound to act on the ‘aid and advice’ of the council of ministers.

One might have argued that the Lt. Governor is akin to a Governor of a state with respect to a union territory, and that would have been the end of the matter. However, there are slight differences between the President, the Governor, and the Lt. Governor. Article 74 states that the President ‘shall act in accordance with the advice tendered’ by the council of ministers, foreclosing the debate on its binding nature. Article 163 notes that at the state level, the council of ministers shall ‘aid and advise’ the Governor, except where he is required by the constitution to act on his own discretion. In the case of Delhi, Article 239AA (4) (above) lays out an arrangement whereby the council of ministers shall ‘aid and advise’ the Lt. Governor, except where he is required by statute to act on his discretion. The article also allows the Lt. Governor to, in event of a disagreement between him and the council of ministers, refer the matter to the President.

According to the High Court, these differences demonstrate that the relationship between a Governor and a state council of ministers, and the Lt. Governor and the Delhi council of ministers are materially different. Firstly, the Lt. Governor’s discretion extends to instances permitted by ordinary statute (as opposed to the Constitution, like the Governor), and secondly, the Lt. Governor can reference a ‘difference of opinion’ between himself and the council of ministers to the President. The fact that such a difference can exist was enough for the High Court to hold that the Lt. Governor was not bound by the ‘aid and advice’ of the council of ministers, who had to secure his approval on all matters.

Effectively, what the Court was doing was engaging in is a structural reading of the Constitution. Rather than focus on the text of specific provisions, it used the arrangement of several provisions to determine the ‘institutional arrangements’ that the Constitution contemplates. The reasoning of the Court, however, runs into several obstacles.

Firstly, it is understood that the exercise of discretion by a state Governor is not limited to instances where the constitution expressly authorises it but extends to situations where ‘by necessary implication’ he must exercise it. Secondly, an exhaustive list of when the Lt. Governor of Delhi can exercise his discretion is provided in Section 41 of the GNCTD Act. Importantly, Section 41 of that Act limits his discretion to ‘matters which fall outside the purview of the powers conferred on the Legislative Assembly’. Thus, while an instinctive resort to a hierarchy of authorities (where the Constitution is sacrosanct vis-à-vis ordinary legislation) might lead one to think that the Lt. Governor has been provided more discretion, an actual examination of the relationship shows that he is in a materially similar position to that of a state governor.

The Delhi government had also used structural interpretation to contend that because Delhi has an elected legislative assembly and a council of ministers, the Lt. Governor was no different from a state governor and, under the Shamsher Singh decision, was bound by the decision of the council of ministers. The power of this argument comes not only from similarities between a full-fledged state and Delhi but also from the idea that the Constitution promulgates a conception of democracy, the working hypothesis of which requires that executive power is given to representative bodies. In Ram Jawaya Kapoor the supreme court recognised this when it noted that: ‘executive power inheres in those which are collectively responsible to the legislature’. The constitutional text creates a legislature to be elected from the population of Delhi, and the council of ministers is accountable to this elected assembly. To vest the executive power of Delhi in an appointee of the central government over and above this elected body is an interpretation that goes against this working hypothesis and raises anti-democratic concerns.

The High Court also noted that the Lt. Governor had the power to refer a matter to the President if there was a ‘difference of opinion’. Does the mere fact that the Lt. Governor can have a difference of opinion with the council of ministers, and the fact that a procedure is laid out to resolve this dispute, lead to the conclusion that the advice is not otherwise binding? An interesting place to look is Article 74, which outlines the relationship between the President and his council of ministers. The proviso to Article 74(1) allows for the President to disagree with a decision of the union council of ministers. In the event of such a disagreement, the matter will be passed back from the President to the council of ministers. The council of ministers may choose to modify the proposal or resubmit it as it (in which case it would be binding on the President). However, the crucial takeaway is that allowing for disagreement doesn’t detract from the binding nature of the ministers’ ‘aid and advice’. This, of course, begs the question: why allow for a difference of opinion if the minister’s views are binding? Consider a situation where the Delhi government tabled a proposal that the Lt. Governor considered to violate a constitutional provision. Under his duty to protect the constitution he would likely be under an obligation to disagree and bring the matter to the President’s attention. However, to argue that because the Constitution permits a difference of opinion, the ‘aid and advice’ of the council of ministers is no longer binding is an understanding that runs contrary to the institutional arrangements created to operationalise democracy through a cabinet style of government.

Initiatives of the Delhi Government

The High Court’s reasoning in striking down the initiatives taken by the Delhi government was two-fold. Firstly, it noted that under the General Clauses Act the ‘appropriate government’ for a Union Territory was the central government. Secondly, it concluded that: if the Lt. Governor could differ with the views of the council of ministers, and the Lt. Governor was the executive head of Delhi, then it stood to reason that his consent was needed on all proposals before they could be put into action. As the proposals for the setting of commissions of inquiry and other initiatives had not been approved by the Lt. Governor, they were deemed to be invalid.

Using the General Clauses Act to determine the ‘appropriate government’ encounters the same difficulties that trying to determine the exact constitutional of Delhi position does. The statute only recognises the power of parliament and the state legislature. Looking at Article 239AA and the institutional practice of the constitution (a functional interpretation) however reveals while the first schedule only recognises states and union territories, there exists a wider spectrum of arrangements in the governance of territories.

The second argument accepted by the High Court is an extension of the conclusion that the ‘aid and advice’ of the ministers is not binding on the Lt. Governor. While suffering from the same infirmities relating to democracy, it also begs the question as to what the role of the Delhi government is if it can be overridden at any point in time. This is best exemplified by Article 239AB which allows for the President’s rule to be imposed in Delhi. If the Lt. Governor (a manifestation of the President’s authority) must approve all matters in the governance of Delhi, why does Article 239AB allow for the imposition of President’s rule in Delhi? Why would the President need to impose his rule in a territory, the governance of which is vested in him?

The Home Ministry Notification

Through a set of notifications in 2014 and 2015 the Home Ministry had declared that (1) the Lt. Governor was empowered to make appointments under Entry 41 of List II (‘state public service’) and, (2) that the anti-corruption bureau (ACB) of Delhi had no jurisdiction against central government employees.

The Delhi government had contended that Article 239AA (3) gave the Delhi legislature competence to make laws on List II, and the notification was an infringement on the legislative competence of Delhi which could only be achieved through a constitutional amendment. The High Court, however, sided with the Centre, noting that as Delhi did not currently have a state public service commission, the central government was free to legislate on the matter. This argument has two implications: firstly it effectively allows the central government to legislate on any matter in List II where a state (or in this case Delhi) has not yet acted upon. There is no constitutional bar on Delhi having a state public service commission, and one wonders how the High Court’s reasoning would have changed if Delhi already had such a commission. Secondly, the Supreme Court has acknowledged that given the nature of the cabinet system where legislative and executive power are collapsed, the Chief Minister must have a say in the appointments of key civil servants. This is essential to achieve the legislative goals of the elected government and ensure smooth governance. To grant the Lt. Governor this power is to throw a spanner in the workings of an elected government.

The exclusion of central government employees from the ACB’s jurisdiction was characterised as a ‘simple direction to a police station’ traceable to Entry 1 (‘police’) which the central government can legislate on under Article 239AA (3). Interestingly, the notification was challenged under both legislative competence (the Delhi government arguing that it was a matter under ‘criminal law’ in List III) and as violative of Article 14 because it created a separate class of citizens in Delhi. This latter challenge was completely ignored by the Court which limits its analysis to the issue of legislative competence.

Conclusion

The dispute between the Delhi government and the Centre is undoubtedly political at its core. But it is precisely within these circumstances of politics that the constitutional text and doctrine can provide some de-minimus level of consensus on how Delhi is to be governed. The crux of the debate centres around the place of Delhi in the constitution, and the fact that it has a legislature elected by the people of Delhi. In evaluating the institutional arrangements that govern Delhi, the High Court was faced with an interpretation of Article 239AA that granted legislative and executive supremacy to the elected government of Delhi government while also granting the central government a say in certain issues. The interpretation ultimately favoured upon by the High Court however cuts the legs out from the elected legislature of the territory.

5 Comments

Filed under Article 239, Federalism

Asking the Right Questions: The Supreme Court’s Referral Order in the Sabarimala Case

In April 2016, a three-judge bench of the Supreme Court had heard arguments in a PIL challenging the Sabarimala Temple’s practice of barring menstruating-age women (between the ages of 10 and 50) from entering the precincts of the temple. In a brief order delivered today, the case has been referred to a five-judge bench for adjudication.

As we have discussed previously on this blog, the Sabarimala Case is a particularly complex one, involving the interaction of statutes, government rules, custom, religious practice, and the Constitution. For a satisfactory adjudication of the case, therefore, it is important that the Court ask the right questions. As we shall see below, today’s referral order succeeds in that enterprise, and lays the foundation for a clear verdict on the constitutional issues involved.

Recall that the justification for excluding menstruating-age women from entry into the Sabarimala is grounded in religious custom and usage. What complicates the issue is that there is also an existing legislation: the Kerala Hindu Places of Worship (Authorisation of Entry Act) of 1965. Section 3 of that Act stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. Section 4 of the Act authorises persons in charge of places of public worship to make regulations for the “due performance of rites and ceremonies, with the proviso that the Regulations cannot discriminate against Hindus of “any class.” Acting under Section 4, in 1965, the Kerala Government framed certain rules. Rule 3 of these Rules deprived certain classes of people from offering worship, and Rule 3(b) included within this class “women at such time during which they are not by custom and usage allowed to enter a place of public worship.”  

Keeping in mind this statutory framework, we are now in a position to understand the issues involved in the Sabarimala Case. The first – and simplest – issue is whether Rule 3(b) is legally valid, given that Section 3 of the Parent Act – i.e. – the primary legislation – mandates that places of public worship must be open to all “sections and classes”. If women constitute a “section” or a “class” of Hindus, then clearly Rule 3(b), being subordinate legislation, is ultra vires the parent statute, and must fall. Consequently, the first question that the Court must answer is whether, for the purpose of temple entry, women constitute a “section” or a “class” of Hindus. To answer this question, the Court must undertake a historical examination of temple entry legislations, the kinds of exclusion that they were trying to combat, and the social movements that necessitated their enactment. While at the core of the temple entry movements was the exclusion of Dalits and other castes, it is also important to note that the root of such exclusion was ideas of ritual pollution and purity; notably, that is exactly the justification being offered for the exclusion of menstruating age women from Sabarimala. Consequently, if temple entry laws were framed for the purpose of making ideas of pollution and purity irrelevant to temple entry, then there is a strong case for including women – as a class – within their protective ambit.

Now, in the event that Section 3(b) is consistent with the parent Act, the larger question of constitutionality arises. The 1965 Act – and the Rules – are pieces of primary and subordinate legislation respectively, and are therefore subject to the provisions of the Constitution. Insofar as the Act and the Rules are invoked to justify the exclusion of women from the Sabarimala Temple, therefore, there is a clear violation of Articles 14 and 15(1) of the Constitution.

That, however, does not settle the issue, because the further argument is that the Act and the Rules merely codify the practice of existing religious mandates. These religious mandates, however, are grounded in something beyond merely the 1965 law: they are protected by Article 25(1) of the Constitution, which protects the freedom of religion. Or, in brief: the exclusion of menstruating age women is a religious mandate protected by Article 25(1) of the Constitution.

This raises a few difficult issues. The first issue is this: once the Kerala legislature passed the 1965 Temple Entry Act, then does there remain any independent right of places of public worship to regulate entry? Or, in other words, is the 1965 Act a “complete code” on the issue of temple entry? Readers will recall that a somewhat similar issue was at stake in the recent Triple Talaq judgment. The question there was whether the 1937 Shariat Act codified Muslim personal law, or whether it only recognised it. If it was the former, then if the 1937 Act was struck down as unconstitutional, the practice of triple talaq would go along with it; if the latter, however, then triple talaq was grounded not in a statute (which could be challenged and struck down for being unconstitutional), but was a part of “uncodified personal law”.

Consequently, the Court will have to decide whether, after the 1965 Act, it can be claimed that there exists an independent right under Article 25(1) to prohibit menstruating women from entering Sabarimala. If the Court decides that it cannot, then there is no further issue: insofar as the 1965 Act bans menstruating women from entering Sabarimala, it clearly violates Articles 14 and 15(1) (it may be argued that banning only menstruating women, and not all women, does not constitute sex discrimination; however, on this blog, it has repeatedly been pointed out how such arguments are flawed, and I will not rehearse them here).

However, if the Court holds that the claim can be made, then under existing Indian jurisprudence, it must ask a further question: is the banning of menstruating women an “essential religious practice” under Article 25(1), and is it consonant with the requirements of “public order, morality, and health”, to which Article 25(1) is subject. This will require the Court to go into the doctrines of the religion, and adjudicate whether the practice in question is essential, or merely peripheral.

Lastly, Article 26(b) of the Constitution guarantees to “religious denominations” the right to manage their own affairs in matters of religion. Two questions arise, therefore: do the worshippers at Sabarimala constitute a “religious denomination”? And is the question of temple access a question of “religion”? On the first issue, there exists substantial jurisprudence. My own suspicion is that in view of the fact that Sabarimala is governed by the Travnacore Devaswom Board (a State institution), and a State legislation, the religious denomination argument will not succeed. There is also a clear public element involved here (to an even greater extent than in the Bombay High Court’s Haji Ali Dargah decision).

The last sub-issue – whether temple access is a pure question of “religion” or not – appears straightforward, but is actually rather complex. This is because, historically – right from Ambedkar’s temple entry movements of the 1920s – issues of temple entry have always been framed as issues of civil rights, involving access to public spaces (for an account, see Anupama Rao’s book, Caste Question). Exclusion from temples has been understood to be an embodiment of social hierarchies and deeper social exclusions, and has been opposed in these terms. In fact, temple entry movements were so politically successful, that the Constitution contains a specific exception to the freedom of religion clause (Article 25(2)(b)) that categorically authorises the State to throw open religious institutions to all classes of Hindus. Consequently, a nuanced analysis might have to acknowledge that for historical, political and social reasons, the issue of temple access is no longer restricted to the purely religious domain, but is inextricably linked with civil status and civil rights.

In my view, therefore, the Court would have to answer the following questions in the Sabarimala Case:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

In its referral order, the questions that the Court has framed are as follows:

“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

While my own framing is almost exactly the reverse of how the Court has chosen to go about it, readers will note that the ground covered is virtually identical. One thing that is particularly interesting to note is that in Question 1, the Court refers not only to Articles 14 and 15, but to Article 17 as well. Article 17 bans the practice of “untouchability”. In framing the question, therefore, the Court has at least acknowledged the possibility that banning women on grounds of menstruation creates and perpetuates a stigma that is similar in character to the stigma faced by caste-untouchability (during the hearings last year, this argument was advanced by Ms Indira Jaising).

The invocation of Article 17 is crucial for another reason. In the recent Triple Talaq judgment, the dissenting opinion by Justices Khehar and Nazeer, after holding that triple talaq was an “essential practice” under Islam and therefore protected by Article 25(1), went on to hold that the phrase “subject to public order, morality and health and to the other provisions of this Part“, which prefaced the Article 25(1) right, could not make triple talaq subject to Articles 14 and 15(1). This was because these Articles only protected the individual against the State, while Triple Talaq was an issue between two private individuals. Note, however, that Article 17 is horizontally applicable – that is, it prohibits untouchability between private parties. If, therefore, the Court is to find that excluding menstruating women from temple access amounts to “untouchability” within the meaning of Article 17, then even if that exclusion is an “essential religious practice” under Article 25(1), it will fall. This, of course, is assuming that Khehar and Nazeer JJ’s views in Triple Talaq, on this point, were correct; my own view is that they were not.

Consequently, the Court’s framing of the referral questions has set up a host of fascinating constitutional questions. And at its heart, the issue is this: should the question of temple access be left purely to the discretion of religious heads, or is it something that should be governed by constitutional norms of equality and non-discrimination? In my view, given the role played by religion in private and public life in India, given how religious status is often inextricably linked with civil and social status, and given the unique history of temple entry movements in India, constitutional norms should apply, and the exclusion of menstruating women from Sabarimala should be stuck down.

In view of the importance of the issues involved, however, it is to be hoped that the Constitution Bench is set up swiftly, and the case heard and decided finally.

 

3 Comments

Filed under Access to Religious Spaces, Article 15 (general), Equality, Essential Religious Practices, Freedom of Religion, Non-discrimination, Sex Discrimination, Sex Equality