Guest Post: The Unconstitutionality of the CBI

Tags

cbi, Federalism, investigations, Legislative Competence, police

(This is a guest post by Rishav Ambastha.)

—

There has been a proliferation of agencies at the Centre, exercising investigative powers, such as the Central Bureau of Investigation, the National Investigation Agency, the Narcotic Control Bureau, etc. This gives rise to some important constitutional questions, with federal implications. This is because legislation on the subject of the ‘police’ is within the exclusive jurisdiction of the states, under the Seventh Schedule of the Constitution. In this essay, I examine the ambit of the legislative entry ‘police’, and argue that the concept of investigation is at the core of such powers. Resultantly, any exercise of such power on behalf of the Central Legislature or Central Executive would be beyond its legislative competence, and therefore unconstitutional.

The Judgment of the Guwahati High Court

Indeed, the Guwahati High Court, in Navendra Kumar v. Union of India, held that the resolution of the Ministry of Home Affairs, which constituted the Central Bureau of Investigation [“CBI”], is non est in law. The High Court further held that the resolution is not traceable to Section 2 of Delhi Special Police Establishment Act, 1946 (“the DSPE Act”), which empowers the Central Government to constitute a special police force for a Union Territory. And additionally, it held that, in any case, the Parliament does not have any legislative competence to constitute a police force, traceable to either to Entry 8 or Entry 80 of List I. Resultantly, the creation of what is effectively a federal police force, through a notification by the central Executive, cannot be constitutionally justified. However, the Supreme Court has stayed the operation of the judgment, and has not heard the case in the last five years.

Entry 8, List I

The fundamental question is of legislative competence of the Parliament to enact a law to establish a police force with the power of investigation. In this regard, the Guwahati High Court held that the Central Bureau of Investigation cannot be traced to Entry 8 of List I, Seventh Schedule (which is titled “Central Bureau of Intelligence and Investigation”) of the Constitution, because the term ‘investigation’ appearing in the entry ‘Central Bureau of Intelligence and Investigation’ has a narrow remit. It is limited for the purpose of finding out what’s happening in the different states, and not in the sense of the word “investigation” as it understood under section 2(h) of the Code of Criminal Procedure, 1973, and which pertains to the investigatory powers of an organised police force. This interpretation also finds support in the Constituent Assembly debates:

Constituent Assembly Debates, Vol. IX, 29^th August, 1949; “The Honourable Dr. B. R. Ambedkar: The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that’ matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word “investigation” therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do.”

 

Entry 80, List I

Furthermore, in Mangament of Advance Insurance v. Shri Gurudasmal, the Supreme Court acknowledged that the Section 6 of the DSPE Act relates to Entry 80 of List I, which allows the Central Government to enact laws for the purpose of extension of jurisdiction of one state to another, with the consent of the latter. In this context, the word ‘State’ in the Entry 80 of List I includes a Union Territory. The DSPE Act is traceable to two entries of different schedules. First, Entry 2 of List II, which is the power to enact laws in respect of police and second, Entry 80 of List I, which is power to enact laws to extend jurisdiction of police of one state to another. The relative legislative competence of the legislature of the province qua the central legislature (pre-Constitution) in relation to the state legislature qua the Parliament (post-Constitution) is still preserved. Entry 80 of List I of the Seventh Schedule of the Constitution relates to Entry 39 of List I of the Seventh Schedule of the Government of India Act, 1935.

It is argued that the Union does not have any policing powers, specifically, power to create agency at the Central level for the purpose of carrying out investigation into penal offences. It is to be borne in mind that the power to enact laws with respect to criminal law and criminal procedure is placed in Entry I of List III of the Seventh Schedule. While, the Union may do so, it cannot in itself create institutions which will exercise the police power except for the Union Territories.

The idea that the Union can legislate and establish a police force for Union Territory and then use that, albeit with the consent of the state, to use it as a police force for investigation of offences within other states, is therefore flawed. Doing so is a colourable exercise of power of the Parliament. The ambit of Entry 80 of List I cannot a contemplate a legislation which provides powers of investigation to the Union within the states which is within the exclusive jurisdiction of the state. That power cannot be exercised to grant jurisdiction to police which is in essence a police force of the Union. The Union cannot exercise police powers in the states for which it lacks the legislative competence to enact a law.

Section 6, DSPE Act

One potential problem with this argument is that the Section 6 of the DSPE Act allows the state to consent to the extension of the power and jurisdiction of one state to another. Typically, this would involve the extension of powers and jurisdiction of the police of one state, which has legislative competence to legislate on it, to another state. But, since the Union has power to create a police force, in effect, it ends up exercising police powers throughout the territory of India, which, as I have argued is a colourable exercise of the power of the Parliament.

The Contrary Judgment of the Bombay High Court

The Bombay High Court, in Pragyasingh Chandrapal Thakur v. State of Maharashtra, analysed the legislative competence of the Parliament to enact National Investigation Agency Act, 2008 (herein after referred as NIA Act). The act in addition to creating offences also, under Section 3(1), establishes a police force to investigate offences. Further, under Section 6, the central government has the power suo moto, without any consent of the state, to direct investigation in offences mentioned in the Schedule (which also includes offences of the Indian Penal Code, 1860). This power trammels over the investigative power of the state, since any investigation by the NIA into such offences automatically terminates any investigation conducted by the state into the schedule offences once the NIA takes over.

The Bombay High Court traced the NIA Act to Entry 8 of List I (Central Bureau of Intelligence and Investigation). This brings out the conflict in the understanding the scope of this entry between the Bombay High Court and Guwahati High Court. The conflict pertains to scope of understanding investigation, which is whether it means investigation as contemplated in the Code of Criminal Procedure, 1973 or as understood in the Constituent Assembly debates, which is limited for the purpose of finding out what’s happening in the vicinity of the states.

In addition to being contrary to the interpretation provided in the Constituent Assembly Debates, the Bombay High Court further has the effect of effacing Entry 2 of List II – the police. It seems to suggest it is open to the Union to create an agency for investigation of offences it enacts, because creation of a police force is only ancillary to enactment of penal offences.  However, the creation of a police cannot be an exercised through an ancillary power, because it is explicitly put in the State List (List II). Such interpretation would trample over the exclusive domain of the state list. Typically, this would involve the extension of powers and jurisdiction of the police of one state, which has legislative competence to legislate on it, to another state. But, since the Union has power to create a police force, in effect, it ends up exercising police powers throughout the territory of India, which, as I have argued is a colourable exercise of the power of the Parliament.

It would also raise questions about the fundamental understanding about the core functions of police. One core aspect of the function of police is to maintain law and order. However, that is already covered within the Entry 1 of List II. If it is stated that maintenance of law and order is the only core aspect of the police function, then Entry 2 of List II becomes redundant. Investigation and prosecution of offences is the other important function of the police, which I argue is what Entry 2 of List II contemplates.

The approach of Guwahati High Court is consistent with my conceptualisation of the Entry 2 of List II, which is that only Police duly constituted by States is competent to undertake investigation. The view of the Bombay High Court that word ‘investigation’ in Entry 8 of List I to mean investigation in terms of CrPC upends the constitutional tilt in favour of the states in the matters of policing powers and bestows that power in the Union. If both the Union and the State were to be contemplated to exercise powers of investigation concurrently, it would have been best placed in the List III of the Seventh Schedule. However, it is not.

Conclusion

It is tempting to look at Entry 8 of List I (“Central Bureau of Intelligence and Investigation”), and automatically assume that the wording covers the CBI. However, in this essay, I have argued that this entry stipulates legislative competence for two purpose (i) establishment of an agency – Central Bureau of Intelligence and Investigation (ii) vesting of power to carry out its ‘investigation’, which is only for the purpose of intelligence gathering, unlike the power of investigation under section 2(h) of the CrPC. The investigation under this Entry is qualitatively distinct from the investigation under the CrPC which emanates from commencement of criminal proceedings in CrPC through either registration of a First Information Report under Section 154 of the CrPC or Complaint before Magistrate under Section 200 of the CrPC.

The Constitution, as it stands today does not allow the Union to create institutions to carry out investigation outside the territorial limit of Union Territory. This becomes even more important, since the Union has enacted various laws where it has assumed the power to investigate and prosecute for penal offences.

Guest Post: Constitutional Silences, Textual Impasses, and Structuralism – A Comparative Analysis of the NCT Delhi and Miller Judgments

Tags

Article 239, Federalism, united kingdom

(This is a guest post by Preetika Mathur, and is a follow-up to her previous piece on this subject.)

---

The purpose of this post is to highlight some interesting similarities between the famous R (Miller) v Secretary of State for Exiting the European Union (“Miller”) decision of the UK Supreme Court and the recent NCT Delhi judgment of the Indian Supreme Court. A discussion of the key issues in NCT Delhi can be found here, here and here. An analysis of the final judgment can be found here.

The UK Supreme Court gave its judgment in the Miller case on 24^th January 2017. The Indian Supreme Court gave its judgment in NCT Delhi on 4^th July 2018. This post does not seek to argue that the Indian Supreme Court was necessarily influenced by Miller in its own reasoning – though no Constitutional Court decides cases in a vacuum. Rather, this post demonstrates how when faced with similar questions about the meaning of constitutional democracy, in two cases riddled with constitutional silences and textual impasses, the respective Courts resorted to similar tools from the limited judicial toolbox to reach their final decisions.

Similar Questions

Fundamentally, the central question for the Supreme Courts in Miller and NCT Delhi was the weight to be given to the constitutional principle of representative democracy in determining the key institutional relationships within a modern State. Specifically, the Supreme Courts in both cases had to decide on the extent to which to prioritise the value of representative democracy over other conflicting values advanced by the Union executives in both cases. In both cases the executive at the Federal level sought to prioritise the value of a stronger more empowered Union executive using the interests of the Nation State as a whole to justify their claim. In both cases, the Union executive claimed that a stronger more empowered executive at the Central level was in the interests of the unity, integrity and political expediency of the Nation State as a whole.

The Miller case arose from the Brexit referendum. In the referendum held on June 23^rd 2016, the UK voted to leave the EU by a majority of 51.9% for leave and 48.1% for remain. Article 50 of the Treaty of the European Union states that “any Member State” that “decides to withdraw from the EU in accordance with its own constitutional requirements” should serve a notice of that intention. In Miller, the Supreme Court was asked to decide on whether the UK’s constitutional requirements required the executive to obtain the prior authorisation of Parliament before it could serve its notice of intention to withdraw from the EU. The alternative contention advanced by the Government was that the executive could serve this notice of intention without prior Parliamentary permission.

The UK Government proposed to use its ‘Prerogative Powers’ to serve the notice of intention to withdraw from the EU without prior Parliamentary approval. Prerogative Powers find their origin in the personal powers of the monarch from the time when the monarch was the absolute and all powerful Head of State. The residue of these powers is now vested with the British Crown in Council – where the Crown (Queen) is merely nominal head with the residue of Prerogative Powers exercised by the Cabinet in reality. As Thomas Poole has written:

The UK Constitution recognises a bundle of prerogative powers… – or ‘Ministerial executive powers’, as a Commons Select Committee prefers to call them. These are the inherent common-law powers of the executive. ‘Inherent’ and ‘common-law’ because they have not been conferred by statute and their existence and conditions of application are matters to be recognized and determined by the courts (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 265-6). Although the bundle has dwindled significantly, it still covers a range of matters… The most important relate to national defence and foreign relations. What distinguishes them politically perhaps is the need for ‘unanimity, strength and despatch’ and a connection to the notion of salus populi (e.g. Chandler v Director of Public Prosecutions [1964] AC 763). What distinguishes them legally is that they do not require Parliamentary authorization.

The argument at the core of the Respondents case in Miller was that since the UK was a representative Parliamentary democracy, operationalising representative democracy took precedence over the governmental expediency gained through use of Prerogative Powers. Similarly in NCT Delhi the core of the Respondents case was that the Constitution through Article 239 AA had expressly conferred a Legislative Assembly on Delhi modelled on the Westminster style Parliamentary system with a Westminster style Cabinet. As a result, operationalising representative democracy had to take precedence over the priorities of the Union executive.

Similar Reasoning and Outcomes

Both cases are also similar because both the Supreme Courts used structuralist reasoning to navigate through constitutional silences and textual impasses. Vasudev Devdasan has already explained the difference between textual and structural approaches to constitutional interpretation in detail in his series of posts on NCT Delhi. In summary, textualism relies exclusively on the words of a particular provision in isolation from the broader institutional relationships created by the constitutional scheme. Structuralism does not look at the text of the provision in isolation. Instead, structuralism looks at the existence and position of a constitutional provision in its relationship to the existence and position of other constitutional provisions. This is in order to identify the institutional relationships envisaged by the Constitution in order to find answers to specific questions about institutional relationships.

Both Miller and NCT Delhi cases were riddled with silences – situations where the constitutional text does not speak. In his seminal piece ‘A Syntax of the Unsaid’ Professor Lawrence Tribe writes:

Indeed, to decree that we must ignore legal silences altogether is no more plausible than to command that we ignore the uncovered parts of a canvas or the pauses in a sonata…We must therefore reformulate, and reduce to more plausible dimensions, the resistance to silence as a source of law if the failure of that resistance is to be replaced with even a modest success. Without a more explicit grammar of how silences may and may not operate in the interpretation of law – a syntax of the unsaid – we may say that law cannot be made by silence, but the echo will return: “Oh yes it can, just watch!

In both the Miller and NCT Delhi cases, the opposing parties construed the textual silences in a manner that allowed them to arrive at diametrically opposed conclusions.

In NCT Delhi the constitutional text of Article 239 AA was silent on the Delhi’s precise place in the hierarchy between Union Territory and State. The Constitutional text of Article 239 (AA) (4) was silent on whether the Lieutenant Governor was bound by the ‘aid and advice’ of the constitutionally mandated Council of Ministers of the Delhi Government. Article 74 on the other hand explicitly says that the President of India “shall” act in accordance with the Aid and Advice of his Council of Ministers. Article 246 was silent on whether Delhi was a Union Territory for its purposes. The proviso to Article 73 was silent on whether it was applicable to Delhi.

In NCT Delhi, the Central Government tried to fill these silences with the assertion that Delhi was merely a Union Territory simpliciter. As a result, even though Delhi had the same legislative competence as a State for all purposes apart from relating to Entries 1, 2 and 18 of the State List it would not have the same executive competence as a State. This meant that Parliament had plenary powers with respect to the Union Territory of Delhi under Article 246 and the Union’s coextensive executive powers remained unaffected by the proviso to Article 73. As a result the Lieutenant Governor was not bound by the ‘aid and advice’ of his Council of Ministers.

 The Delhi Government tried to fill the silences in the constitutional text with the assertion that Delhi was a unique constitutional hybrid. This led the Delhi Government to arrive at the exact opposite conclusions to the Central Government with respect to the same constitutional provisions. The Delhi Government argued that since Delhi had the same legislative competence as a State for all purposes apart from Entries 1, 2 and 18 the Constitution intended to treat Delhi akin to a State for the purposes of the executive powers of the Delhi Government. As a result, Delhi had the same executive competence as a State in all areas apart from Entries 1, 2 and 18. Further, since Delhi was not a Union Territory simpliciter but a unique constitutional hybrid the proviso to Article 73 had bite with respect to Delhi and the Union’s executive powers were displaced by the proviso to Article 73.

The Miller case too, was riddled with constitutional silences. In Miller, like in NCT Delhi both parties used these silences to arrive at diametrically opposed interpretations of the same legal provisions. The Government wished to rely on an unwritten Prerogative Power in an unwritten constitution. The key pieces of legislation governing the issue were silent on whether the Prerogative claimed by the government really did exist and whether it could be used to remove the UK from the EU. The key pieces of legislation were The European Union Referendum Act 2015 which made legal provision for the Brexit Referendum and The European Communities Act 1972 which made the UK a member of the EU and brought EU law into UK domestic law. These silences in The EU Referendum Act 2015 and The European Communities Act 1972 led the Government to argue that they had a pre-existing Prerogative Power to make and unmake treaties at the international level. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on the issue of Prerogative Powers and neither Act explicitly or implicitly removed the pre existing Prerogative Power this pre existing power could be used by the Government to serve its notice of intention to withdraw. The Respondents arrived at the exact opposite conclusion from the silence. They argued that the Government did not have the pre existing Prerogative Power that they claimed to have. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on Prerogative Powers and neither Act expressly conferred such a power, the Government had no such Prerogative Power that it could rely upon. Specifically, the Governing was seeking to use Prerogative Power to alter and destroy domestic law rights – the Respondents argued that the Government had no Prerogative Power at the international level to alter or destroy domestic law rights.

The diametrically opposed constructions of the constitutional silences is also well demonstrated by the conflicting usage of the same metaphor by the Government and the Respondents throughout the case. Both sides relied on the metaphor of the “conduit pipe” to different ends. The Government argued that The European Communities Act 1972 (which brought EU law into UK domestic law) was merely a “conduit pipe” for whatever rights and obligations the Government decided to subscribe to at the international level. They relied on Section 2 of The European Communities Act 1972 which provides that EU law rights, remedies etc “from time to time provided for by or under the Treaties” were “to be given effect or used in the United Kingdom”. The Government argued that the words “from time to time” meant that The European Communities Act envisaged that the Government could through its treaty making/unmaking Prerogative at the international level increase or decrease the flow of rights and obligations down this pipe. The Government argued that The European Communities Act 1972 was ambulatory in that it envisaged varying levels and intensities of rights flowing down this pipe over time.

The Respondents in Miller turned the “conduit pipe” argument on its head. They argued that once rights had flowed down the pipe to become a part of domestic law, the Government did not have the Prerogative Power at the international level to take away or alter these domestic law rights. Further, the Respondents argued that The European Communities Act 1972 created a new legal order by introducing a new source of law into the UK and the Government was not simply seeking to decrease the flow of rights and obligations down the pipe but to destroy the pipe altogether. They argued that Section 2 of The European Communities Act 1972 did not envisage the destruction of the “conduit pipe” altogether. They argued that there is a vital difference between changes in domestic law resulting from variations in the content of EU law that arise from new EU legislation which “flow down the pipe” and changes in domestic law resulting from withdrawal from the EU altogether.

In NCT Delhi all the judgments of the Supreme Court (both majority and separate concurring) resorted to structural reasoning to cut through the silences and textual impasse in that case. All judgments relied heavily on and prioritised the structural principle of representative Parliamentary democracy concluding that the Lieutenant Governor was bound by the ‘aid and advice’ of his Council of Ministers. Specifically, this was because Article 239 AA was an exercise of constituent power; that had introduced Westminster style representative democracy into Delhi with a Westminster style cabinet system of government. An aspect of a Westminster style cabinet was the principle of collective responsibility. As a result, ultimate executive authority must vest with the Council of Ministers in Delhi and the Lieutenant Governor must be bound by their ‘aid and advice’ where Delhi has legislative competence (this was subject to the limitation that Delhi’s status as the national capital would require situations where this principle could be departed from, as acknowledged by Justice Chandrachud in his concurring opinion).

The Miller case was heard by a 11 judge bench of the UK Supreme Court. The Supreme Court by a majority of 8-3 found in favour of the Respondents. The majority gave a single judgment, Lord Reed, Lord Carnwarth and Lord Hughes dissented and wrote separate judgments each.

In Miller too the majority of the Supreme Court resorted to structural reasoning to identify the best approach to fill the silence and resolve the textual impasse. It viewed the dispute in the Miller case from several distinct structural perspectives to determine the most appropriate outcome in the case.

The first of these perspectives involved examination of the institutional relationships between the judiciary, the Crown and Parliament over the course of several centuries. The court noted that over this historical period the judiciary had progressively curtailed the Prerogative Powers of the Crown to further the interests of representative democracy and transfer power from the Crown to Parliament. The Courts had progressively curtailed the circumstances in which Prerogative Powers could be resorted to as well as the manner in which they could be used and the extent of their impact on domestic laws when used. The majority judgment of the Supreme Court described that in many ways the history of the common law had been an unbroken history of limiting the Prerogative. The Supreme Court cited a long unbroken line of authorities through which these developments had taken place. The first of these cases was the 17^th Century Case of Proclamations. The Court then cited a number of important 20^th Century decisions. This included the following extract from Lord Parker’s judgment from the 1916 decision of The Zamora:

The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.

The Court also cited the 1920 judgment of Attorney General v De Keyser’s Royal Hotel Ltd and the 1995 decision in R v Secretary of State for the Home Department, Ex p Fire Brigades Union. It held that these two cases had crystallised the principle that that the Crown cannot alter the common law or statute by an exercise of the Prerogative Power and nor can the Crown frustrate the purpose of a Statute – even if that Statute is not yet in existence. It also cited the 1965 judgment of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate in which Lord Reid explained that the Royal Prerogative is a source of power which is “only available for a case not covered by statute. This historical analysis of institutional relationships within the British Constitution helped the Court to identify the role that it ought to take in the Miller case. After conducting its historical analysis of institutional relationships as developed through the case law, the Court concluded that: “It would be inconsistent with long standing and fundamental principle for such a far reaching change to the UK Constitutional arrangements to be brought about by ministerial decision or ministerial action alone”.

 This historical analysis and consideration of the development of the institutional relationship between judiciary, executive and legislature led to the second structural perspective that was used by the majority of the Supreme Court. The majority considered the proper relationship between the people of the United Kingdom and the executive. The majority concluded that this meant that the executive could not deprive people of domestic rights through Prerogative Power at international level. Such deprivations could only done by Parliament as this better protected the democratic interest of citizens.

The third structural perspective used by the majority of the Supreme Court was to compare the institutional arrangements in the British Constitution before The European Communities Act 1972, after its enactment and after its destruction to determine what had changed. The Court did not resort to more textualism to resolve the conflicting interpretations of the constitutional silences in The European Communities Act 1972 but instead opted to examine the bigger structural picture. It agreed with the Respondents that The European Communities Act had “effected a fundamental change in the constitutional arrangements of the United Kingdom” and introduced a new source of law entirely. It held that as a result the silences in The European Communities Act 1972 could not be construed to mean that Parliament had contemplated or intended that Ministers could cause the United Kingdom to withdraw from the European Treaties without prior Parliamentary approval.

“Working a Democratic Constitution”: The Supreme Court’s judgment in NCT of Delhi v Union of India

Tags

Federalism, gnctd, states, union territories

Today, a Constitution Bench of the Supreme Court delivered its judgment in NCT of Delhi v Union of India. Previously on this blog, I had written about the political consequences of the Court’s delay in hearing this case, and Vasudev Devadasan wrote a three-part series on the main substantive issues (Part I; Part II; Part III). Readers will recall that the dispute turned upon the “special status” of the National Capital Territory of Delhi. Not a “full state” and neither just a Union Territory, Delhi has an entire article dedicated to it: 239AA, which, read with the GNCTD Act and the Allocation of Business Rules, sets up a complicated legal structure defining how governance is to be carried out in Delhi.

Put simply, this legal structure envisages two constitutional authorities – the elected Chief Minister of Delhi (at the head of the Council of Ministers) and the Lieutenant-Governor, the appointee of the central government. When Delhi began life in the colonial era as the Chief Commissioner’s Province, it was ruled by an Administrator who, in effect, ruled as an autocrat. The spread of representative government through British India passed Delhi by, and it was only after Independence that, through incremental amendments to the Constitution (culminating in Article 239AA), representative institutions came to Delhi. During this time, the position of the Administrator was transformed into the Lieutenant-Governor [“LG“], and he became a representative of the central government in Delhi. This, ultimately, is what led to the constitutional ambiguity: in Indian states, the equivalent of the LG – the Governor – was little more than a titular head, bound to act upon the “aid and advice” of the elected government, with only a narrowly circumscribed sphere of discretion. However, as Delhi moved from an autocracy to a representative government, its status as the national capital prompted the Parliament to refrain from granting it full statehood. It is this that led to the unique situation where you had both an elected government and an LG who retained something of the old powers. And it was the precise demarcation of powers that brought the case to the Supreme Court.

At the heart of the dispute lay two articles: Article 239AA(3)(a), and Article 239AA(4). These articles state:

(3)(a) Subject to the provisions of the Constitution, the [Delhi] 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 of 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 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18.

…

(4) There shall be a Council of Ministers consisting of not more than ten percent, 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 to 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.

To put matters very simply, there were two broad issues that arose. The first was the meaning of the phrase “aid and advise.” It was settled law – and also written into the Constitution through amendment – that in the case of the central government and the state governments, the words “aid and advise” – which are used in reference to the President and the Governors – mean “aid and advice that is binding.” In other words, the President and the Governors must act in accordance with the “aid and advice” tendered to them by the Council of Ministers. However, Delhi’s status as not-quite-a-state, and the absence of any explicit recognition that the LG had to act upon the aid and advice, allowed the Union Government to argue – and the Delhi High Court to hold – that in this regard, the LG’s position was not equivalent to the President and the Governors, and that he was not bound by the aid and advice of Delhi’s elected Council of Ministers. Let us call this Phase One: The Demarcation of Executive Power.

The second issue was about the meaning of the phrase “on any matter.” If the constitutional position was that the executive power of Delhi lay with the elected council of ministers, then the next question arose whether in all cases, the LG was authorised to have a “difference of opinion”, and escalate the matter to the President. In other words, did the phrase “any matter” mean “every matter”? Let us call this Phase Two: The Scope of the LG’s Power to Refer a Difference of Opinion to the President.

Phase One

I do not propose to go into the detailed arguments advanced in the three separate opinions, which together clock in at 535 pages. Broadly, this was the line of argument that all five judges agreed upon.

1. Representative democracy, exercised through Parliamentary institutions, characterised by principles of collective responsibility and accountability (“the Westminster system”), is at the heart of the Constitution.
2. Parliamentary democracy under the Indian Constitution envisages an elected, lawmaking body (“legislature”), and a council of ministers (“executive). The scope of operation of the legislature is defined under the Seventh Schedule of the Constitution, which lists out the fields under which the central and the state legislatures can pass laws. The power of the executive is co-extensive with that of the legislature: the executive can act in the same fields in which it is open to the legislature to pass laws. The head of the executive (President/Governor) acts in accordance with the “aid and advice” of the council of ministers.
3. Article 239AA, which explicitly creates an elected legislature for Delhi, clearly envisages that, at a broad level, Delhi is to be governed in accordance with the two principles set out above. To the extent that the text of Article 239AA is open to more than one interpretation, the interpretation that furthers the Constitution’s commitment to representative democracy must be preferred (see Chandrachud J.’s concurring opinion for a particularly clear articulation of this interpretive principle).
4. Therefore, the Council of Ministers for Delhi has the executive power to take action in all the fields in which the Delhi legislative assembly can pass laws (as per Article 239AA(3), this includes the State list (barring land, police, and law and order) and the Concurrent List of the Seventh Schedule). In this context, the aid and advice of the CoM is binding upon the LG. Under the Allocation of Business Rules, the CoM must at all times keep the LG informed, but they do not need to seek his concurrence. The purpose of information is so that the LG can decide wither to exercise the power vested in him under the proviso to Article 239AA(4) (which is what we shall discuss next).

Consequently, the judgment of the Delhi High Court, that had held that the LG was the actual head of the executive in Delhi, was incorrect.

Phase Two

In Phase One – demarcation of executive power – the Court held that, subject to the express constitutional limitations, which took land, police, and law and order out of the remit of the Delhi assembly and government (and placed other procedural limitations such as overriding federal legislative power and Presidential assent), Delhi had the character of a state: its assembly had legislative power, and its council of ministers had co-extensive executive power. The role of the LG, to this extent, was that of a titular head: he had a right to be informed, but he was also bound by the decision of the CoM.

This, then, led to the second issue: the proviso to Article 239AA(4) gave the LG a unique power that state Governors do not possess: if the LG had a difference of opinion with the CoM, then – subject to some conciliation measures provided for in the GNCTD Act and the Allocation of Business Rules – he could escalate the matter to the President. However, all five judges were in agreement that – contrary to the submission of the Union of India – the words “any matter” could not mean “every matter.” As Chandrachud J. correctly observed, if such an interpretation was to be placed on the proviso, then the rest of the scheme of Article 239AA would  come crumbling down. All three judgments are replete with statements to the effect that, under the guise of referring a difference of opinion, the LG cannot bring governance to a standstill.

However, the question then followed logically: if “any” did not mean “every”, then what did it mean? The Government of Delhi suggested that the word “any” should be restricted to the three entries of List II that were excluded from Delhi’s legislative competence under the state list – land, police, and law and order. On every other issue, the LG would remain bound by the “aid and advice” of the CoM. However, the Court rejected this interpretation, on the basis that if Delhi’s power was altogether denuded in respect of these three subjects, the question of a “difference of opinion” never arose.

The Majority opinion, authored by the Chief Justice, did not enumerate a list of subjects upon which the LG could “differ” and escalate the matter to the President. Instead, the majority held that a reference could be made only in “exceptional” circumstances, but did not elaborate – even illustratively – on what the word “exceptional” meant. A similar issue plagued Justice Bhushan’s opinion. He observed that the LG could not interfere in “routine” matters. But what does “routine” mean? In fact, Justice Bhushan’s 123-page opinion – in which he substantively agreed with everything that the other four judges held – was undone by some very loose language in Conclusion VIII, where he noted that the LG’s power is “not to be exercised in a routine manner… [but] when it becomes necessary to safeguard the interest of the Union Territory.” “Safeguard the interest” is so broad, that it practically converts “any matter” to “every matter”, which is exactly what all five judges held was not the way to read the proviso.

It was left to Chandrachud J. – in his concurring opinion – to provide concrete shape to the “exceptional” circumstances that might trigger the proviso. The basis of Chandrachud J.’s reasoning was that there was a reason why Delhi did not have full statehood: it was the national capital, and therefore, by its very nature, the Union Government would have a stake in it. Article 239AA recognised the Union Government’s stake in the national capital in two distinct ways: first, it did so in the legislative sphere: by taking land, police, and law and order out of the ambit of Delhi’s legislative powers, and giving Parliament the option to exercise lawmaking power even in the state list; and secondly, it did so in the executive sphere: by giving the LG the power to refer a difference of opinion to the President. It therefore logically followed that the scope of this power would have to be defined on the same basis: the LG could only make a reference when the issue concerned national interests, and not the interests of the NCT. According to Chandrachud J.:

“…it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union government. The Lieutenant Governor may similarly consider it necessary to invoke the proviso to ensure compliance with the provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national capital. Financial concerns of the Union government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved.” (para 142)

Although Chandrachud J. declined to set out an “exhaustive”, subject-wise list under the proviso, the illustrative list provided in the paragraph above – within the broader rubric of “national concerns” – makes it clear how the proviso is to be understood. It is submitted that the judgment is best interpreted by taking Chandrachud J.’s concurring opinion as clarifying the meaning of the phrase “exceptional situations” in the Majority’s opinion. In other words, the proviso kicks in if there is an “exceptional situation”, and an exceptional situation is where some executive action of the Delhi government clearly impinges upon a legitimate interest of the Union government qua Union government physically based in Delhi. To take a tangible example: the opening of mohalla clinics has nothing to do with national concerns, and therefore does not fall within the scope of the proviso.

Two further points: if the LG differs with the Delhi government, must she record her reasons in writing? And is there a specific time limit within which the “difference of opinion” must be forwarded by the LG to the President? On the first issue, the judgments are silent; however, given that all the judgments stress that the difference of opinion must be reasoned and not a “contrived difference” it follows virtually as a necessary implication that the LG must reduce the reasons for differing into writing. On the second issue, as well, the judgments are silent, and I submit, regrettably so. Only in his concurrence, Justice Bhushan suggested that the difference in opinion must be referred within a “reasonable time” of the LG having “seen” it, but declined to define with any further specificity what “reasonable time” meant.

No doubt, the judges intended that such issues be resolved through “constitutional statesmanship” – a phrase that, along with its variants – recurs throughout the judgments. However, given that this case only came to Court because of breakdown in “constitutional statesmanship”, it might have been better had these loopholes been firmly closed. This would have been in tune with the Supreme Court’s closing of various other loopholes that the framers, in their mistakenly optimistic view of human nature, had left to the mercy of constitutional conventions (the most recent example being the ordering of “floor tests” within 48-72 hours of election results, in case where there is more than one claimant to Chief Ministership).

Services and the ACB

There were two specific issues that were litigated before the Court: who had control over Delhi’s civil service, and who had control over the Anti-Corruption Bureau. The former, as everyone knows, has acquired specific salience in recent days. The Court did not return a specific ruling on either issue, and presumably, it will be settled by smaller benches.

On the first issue, my reading of the judgment is that the Delhi government clearly has control over the services. This follows from a combined reading of the majority judgment, and Chandrachud J.’s concurrence. The majority clearly held that barring the three excluded subjects – land, police, and law and order – GNCTD had co-extensive legislative and executive powers over all other fields in Lists II and III. “Services” features under Entry 41 of List II, which states: “State public services; State Public Service Commission.”

The Union of India argued that Entry 41 specifically used the word “state”. Delhi was not a “state”. Consequently, services were excluded from its ambit. This argument, however, was specifically addressed by Chandrachud J. in paragraphs 128 – 130 of his judgment, where he noted that the use of the word “state” throughout the Constitution was not dispositive; where appropriate according to context, “state” would include “union territories.” When you read this back into the majority’s clear statement that the executive power extends to every entry apart from the three specifically excluded, the conclusion that services lie within the executive power of the Delhi government becomes irresistible.

The ACB issue, however, remains unresolved; before the Court, the dispute was whether the ACB came within the definition of “police” or not. The Court expressed no opinion on this, and so this, now, must be argued afresh before a smaller bench.

Conclusion

The Supreme Court’s judgment (I take “judgment” here to refer to all three opinions) in National Capital Territory of Delhi v Union of India correctly identifies representative democracy as a fundamental feature of the Indian Constitution, and correctly interprets Article 239AA in a manner that, within the textual boundaries of the provision, strengthens representative democracy. Its analysis of the constitutional history of Delhi, and the application of constitutional principles to the interpretation of Article 239AA, repays close study. On the subject of the proviso to Article 239AA(4), however, it suffers from a lack of specificity, a defect that – I submit – can be remedied by treating Justice Chandrachud’s concurrence as clarifying the Majority.

One last point: the length. Again. 535 pages. How unnecessary it is, once again, is conceded by the judges themselves. In paragraphs 117 and 118, Justice Bhushan notes:

117. I have perused the elaborate opinion of My Lord, the Chief Justice with which I substantially agree, but looking to the importance of the issues, I have penned my own views giving reasons for my conclusions.

118. I have also gone through the well researched and well considered opinion of Brother Justice D.Y. Chandrachud. The view expressed by Justice Chandrachud are substantially the same as have been expressed by me in this judgment.

That this occurs at page 531 of 535 tells its own story. If there is “substantial agreement”, then the “importance of the issues” simply does not justify penning a full-fledged separate opinion, which multiplies pages, multiplies the effort involved in reading, and also multiplies the possibilities of future confusion when lawyers use semantic distinctions between separate opinions to re-litigate issues that everyone thought were settled.

 

Guest Post: Structure of Freedom – Federalism in the Context of Padmaavat

Tags

constitutional structure, Federalism, freedom of speech

(This is a guest post by Karan Lahiri, a practicing lawyer.)

—

Earlier this month, the Supreme Court passed an interim order in the case of Viacom 18 Media Pvt. Ltd. & Ors. v. Union of India & Ors., lifting the bans that the state governments of Gujarat and Rajasthan had imposed on the screening of Sanjay Leela Bhansali’s Padmaavat, the release of which faced violent protests from fringe Rajput groups. It also tied the hands of States like M.P. and Haryana, where similar executive orders were being contemplated, from following suit. Whether one sees this as a reaffirmation of constitutional values, or, more cynically, as a grasping of low-hanging fruit in these fraught times for the Court, the issues thrown up are worth discussing from the standpoint of constitutional doctrine.

In an article published in the Mint, which can be accessed here, I’ve examined how the Padmaavat interim order drew from the Aarakshan judgment (Prakash Jha Productions v. Union of India), as also the 1989 judgment in S. Rangarajan v. P. Jagjivan Ram, both of which establish that States have a positive duty to protect free expression by maintaining law and order. The sequitur is that the States cannot throw up their hands when faced with a heckling mob, and point to instances of violence caused by such hecklers to justify censorship on grounds of law and order.

Apart from addressing the issue of the States’ duty to maintain public order and protect, I believe that the Order vaguely pointed at another important idea, which ought to have been fleshed out in a more organized, coherent manner, when it said –

“Once the parliamentary legislation confers the responsibility and the power on a statutory Board and the Board grants certification, non-exhibition of the film by the States would be contrary to the statutory provisions and infringe the fundamental right of the petitioners.”

The fact that there is a specialized statutory board is not really relevant here. This should not have sounded like an argument on institutional competence. The emphasis ought to be on the fact that this board, i.e. the CBFC, is a creature of Parliamentary legislation. To drive this argument home, the Court ought to have looked at Schedule VII of the Constitution, which divides legislative fields between the Union and the States. Entry 60, List I places “[s]anctioning of cinematograph films for exhibition” as an area in the exclusive domain of the Union Parliament. The power of the States, under Entry 33 List II, extends only to “cinemas subject to the provisions of entry 60 of List I”. This means that, first, States can only regulate individual cinemas through legislation. Second, this power is specifically subordinated to the Union Parliament’s power under Entry 60, List I, making it clear that States have no power whatsoever to enter into the content of the films screened in these cinemas.

One of the few judgments of the Supreme Court which has looked into this division of power between the Union and the States is Union of India v. Motion Picture Association, where the Court observed: –

“The basic purpose of the impugned laws which deal with licensing of cinema halls, and prescribing conditions subject to which such licences can be granted, is to regulate the business activity of the exhibitors of cinematograph films. Obtaining a licence for running such cinema theatres is for the purpose of regulating this business. This purpose has a direct nexus with Articles 19(1)(g) and 19(6) of the Constitution. The source of legislation under this head can be traced to Entry 33 of List II which entitles the States to legislate on “theatres and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements”.

That is why State laws have been framed for regulating the terms and conditions on which a licence for exhibiting films at cinema theatres can be obtained. Part III of the Cinematograph Act, 1952 which applies to Union Territories is also in the exercise of the legislative powers under Entry 33 of List II. Since Delhi was a Union Territory and is now National Capital Territory since 1991 by virtue of the Constitution 69th Amendment Act, 1991, Parliament has the power to legislate under this entry also [see Article 246(4) and the relevant provisions of Article 239-AA]. Entry 60 List I on the other hand deals with “sanctioning of cinematograph films for exhibition”. Censorship provisions, for example, would come under Entry 60 of List I and these would directly relate to Article 19(1)(a) and Article 19(2) of the Constitution. The basic purpose of these impugned provisions is, therefore, to regulate the business of exhibiting films in cinema theatres under Entry 33 List II.”

Justice Sujata Manohar, who penned this decision, identified that States can only regulate the business activity of the individual cinema hall, whereas legislation touching the content of the film lies exclusively within the domain of Parliament. This clear delineation of legislative powers ought to have been expressed clearly in the Supreme Court’s interim order.

This line of argument, where federalism and structure blend with rights and freedoms, and where the domain of impact of one tier in a federal system is fenced in, consequently enhancing liberty (e.g. by tying the hands of States in domain of censoring cinema), is not novel. In the United States, it has been used to great effect in advancing the rights of the LGBT community in challenges to the Defence of Marriage Act (DOMA), a federal legislation that had prevented same-sex couples married under their State laws from accessing federal benefits. Judge Boudin of the U.S. Court of Appeals for the First Circuit, in Massachusetts v. HHS, while striking down DOMA, placed the regulation of the rules and incidents of marriage within the domain of the States, and said that federal statutes intruding on matters customarily within State control are to be “scrutinized with special care”. Judge Boudin pointed quite clearly to the blending of structure and rights when he said: –

“True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”

Therefore, federalism was used by Boudin to justify a closer scrutiny of laws violating the equal protection clause of the US Constitution. This rationale was picked up and taken much further by Justice Anthony Kennedy in the US Supreme Court’s decision in US v. Windsor, fusing federalism with the right of same-sex couples to live with dignity. He wrote: –

“Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

Kennedy used federalism a little differently from Boudin. While Boudin used it to justify a higher degree of scrutiny, Kennedy used federalism to define a constitutional baseline against which to test DOMA. His argument, at its most basic, runs a little like this: –

1. Only States can regulate marriage.
2. States have used this power to recognize the rights of same-sex couples and their right to live with dignity. [This is the baseline set by Kennedy.]
3. The Federal government, in enacting DOMA, has not only intruded into the domain of the State but also deprived the same class of people whose rights were recognized by the State of important benefit. This is, according to Kennedy, “strong evidence of a law having the purpose and effect of disapproval of that class”.

In other words, the ratcheting back of privileges by the Federal government (an interloper in the domain of States) tested against the baseline set by the States has been used by Kennedy to justify the conclusion that same-sex couples have been singled out for particular disability.

I have attempted to provide these two examples from American constitutional jurisprudence to clarify my own ideas on the link between structure and freedom, perhaps as a starting point for further examination and writing. To this end, I felt it might be useful to think aloud, in the hope that the reader may get a flavor of my claims from a few disjointed threads: –

1. I think there is a need to look at our Constitution’s structural features more closely, and map this onto the larger doctrinal topography of Indian fundamental rights jurisprudence. For instance, the fact that these structural features (such as the interplay between Entry 60, List I and Entry 33 List II) have freedom-enhancing effects in certain cases cannot lead to the conclusion that they were inherently intended to be freedom enhancing. For this to hold good, there would need to be some evidence of this in our constitutional history supporting this claim, which is perhaps one avenue of inquiry for systematic research.
2. Second, I recognize the fact that, in general, arguments flowing from federalism (or, indeed, any structural argument, even if it flows from the horizontal separation of powers between the three branches of government) do not, inherently, enhance or constrict freedom. A State law enhancing the breadth of rights may fall to a federalism objection. I am also aware that arguments flowing from structure are agnostic with respect to political valence and the desirability of outcomes. For instance, Boudin’s decision (mentioned above) cites S. v. Lopez, where the conservatives on the U.S. Supreme Court came together to strike down gun control legislation by deploying arguments founded in structure.
3. I am interested, more specifically, in the formulation and deployment of arguments where there is a hybridity, so to speak, brought about by fusing structure and freedom, and the outcomes in such cases.
4. Most particularly, it would be worth thinking about such hybridity as both a doctrinal and rhetorical tool in the hands of a judge (and, perhaps, developing a schema that explains particular cases, such as the DOMA cases in the U.S.), as also a strategy in the arsenal of constitutional lawyers, particularly in the face of a conservative bench. A conservative bench, ordinarily wary of expanding freedoms, would perhaps be more amenable to an argument addressing structure and In the Padmaavat case, the bench was headed by the present Chief Justice, who penned the judgment in Devidas Ramachandra Tuljapurkar v. State of Maharashtra, where he created a new class of “historically respected personalities”, previously unknown in our jurisprudence, and used it to justify curbing the breadth of provocative artistic expression touching upon such personalities. Arguably, a pure rights-based argument about Padmaavat, where the Karni Sena’s objections stem from the portrayal of Rani Padmini, a “historically respective personality”, may not have gained traction. What the Padmaavat order tells us, perhaps, is that in the face of a conservative Court, fusing rights with structure may make for a more successful formulation of arguments against intrusive state action.

One concluding point: it needs to be emphasized, for the sake of completeness, that the States could not have relied on Entry 1 of List II, giving the States the power to legislate on “public order”, or on Article 19(2), which allows for reasonable restrictions on free speech on grounds of “public order”, to justify their actions. This is because it would have been difficult to demonstrate that anything in the film constituted the proverbial “spark in a powder keg”, i.e. that the message has a clear tendency to disrupt public order, especially at a time when the movie had not even been released. Obviously, measures designed to maintain public order would have addressed themselves to the violent mob looking to silence expression, and not to an unreleased movie.

 

 

 

 

 

 

 

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

Tags

Federalism, gnctd, states, union territories

(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.

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

Tags

Article 239, delhi, Federalism, union territories

(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.

Guest Post: Government of Delhi vs Union of India

Tags

Federalism, gnctd, states, union territories

(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.