Judicial Evasion and the Referral in Delhi vs Union of India

The conflict between the government of Delhi and the central government has been one of the more enduring political stories of the last few years. The conflict stems out of Delhi’s unique status as more-than-a-union-territory-but-not-quite-a-state, defined by Article 239AA of the Constitution. The political controversy, in brief, turns upon a dispute between the elected Delhi government, and the central government, on the location of governing power, and the status of the Lieutenant-Governor (a central government appointee). To put it simplistically, the Delhi government argues that, subject to the specific exceptions carved out in Article 239AA, the L-G’s role is (akin to that of the President) that of a rubber stamp, bound by the “aid and advice” of the Council of Ministers. The central government argues otherwise, advocating a much broader role for the L-G.

After substantial political controversy, with the Delhi government alleging that the L-G was deliberately stymying its functioning at the behest of the central government for political gain, the matter reached the Delhi High Court. The High Court handed down an elaborate judgment siding with the central government. Naturally, the Delhi government appealed.

Proceedings in the Supreme Court

The Supreme Court’s orders can be found by searching for “SLP (Civil) No. 26200/2016”, on the “Daily Orders” page. The first date of hearing was 5th September, 2016, where the matter was posted to an appropriate bench. On 9th September, before a bench of Justices Sikri and Ramana, notice was issued, and the parties were asked to complete the formalities. The case was listed for 15th November. On 15th November, it was adjourned by two weeks. On 28th November, it was adjourned for another week. On 5th December, it was listed for 12th December. On 14th December, the Court directed that a reply be filed to one of the I.A.s, and that the case be listed in the third week of January. It was mentioned before the Chief Justice on 18th January, who directed that it be listed on 31st January before the appropriate bench. On 31st January, it came to Justices Sikri and Agarwal, who began hearing it. It was heard in part, and listed for 2nd February. The Court then heard it on the 2nd of February, on the 8th of February, on the 9th of February, on the 14th of February, and on the 15th of February. On the 15th of February, the Court decided that in view of Article 145(3) of the Constitution, this case raised issues of considerable constitutional importance, and needed to be heard by a bench of five judges. The case was referred accordingly.

The Prospect of Judicial Evasion

From the 5th of September to the 15th of February is more than five months, and it is perhaps unfortunate that it took the Court that long to decide that the case raised substantial questions of constitutional importance. More than that, however, what is important is this: the term of an elected government is five years. The present case has been in the Supreme Court for almost ten percent of that time. The Delhi government’s argument is that the L-G is deliberately not allowing it to function as it should, and to fulfil its electoral promises. Whatever the merits of that argument, it is the definition of a political crisis, and – to an extent – a constitutional crisis. In this context, it’s also important to note that the status quo – that is, the High Court’s judgment – favours the central government. In other words, the more the Supreme Court delays setting up the Constitution Bench, the closer this case gets to becoming infructuous (the next Delhi election is in 2020), and the more an unbalanced status quo – that has serious political ramifications – continues.

It is something akin to what would have happened if the UK Supreme Court had simply sat on the Brexit case, instead of hearing it in December and handing down a judgment in January. Whether it wants to or not, the Court is neck-deep into a political conflict, and as the Constitutional arbiter, its task is to decide that conflict in accordance with the Constitution.

Five months, admittedly, is not too great a delay in the Indian legal system (although, in the context of five-year election terms, it is already a great deal of time lost). However, the closer we get to 2020, the closer this case will get to yet another instance of judicial evasion; like Aadhaar and demonetisation, like Bihar’s alcohol ban, like the denial of a tax exemption to a film on homosexuality, and like the constitutionality of the Central Bureau of Investigation, it will be another case which raises crucial constitutional issues, but is effectively decided without a reasoned judgment by the Supreme Court (all these cases, it needs to be reiterated yet again, involve basic fundamental rights; the Delhi case is as important, because it involves the question of governing power).

So, one can only hope that the Constitution Bench to hear this case will be constituted as soon as possible.

 

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3 Comments

Filed under Judicial Evasion, Uncategorized

3 responses to “Judicial Evasion and the Referral in Delhi vs Union of India

  1. Good post. The Supreme Court needs to hear this case, the demonetization case, and the Aadhar case ASAP.
    The outcomes in all three cases will also have a political impact.

  2. True ……………thanks for sharing this

  3. Manish

    I think this case will decide that our judicial system is very honest to the democracy.

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