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

(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.

 

 

 

 

 

 

 

Advertisements

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

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

—

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

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

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

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

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

Article 239AA (4): There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

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

The ‘Westminster’ model and collective responsibility

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

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

Aid and advice and the proviso to cl. 4

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

—

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

To broadly summarise the relevant legal provisions:

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

Legislative and Executive Power

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

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

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

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

The argument from the text

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

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

And 3(c) provides that:

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

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

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

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

The argument from structure

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

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

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

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

Conclusion

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

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

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

Guest Post: Government of Delhi vs Union of India

(This is a guest post by Vasudev Devadasan.)

—

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

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

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

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

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

• Article 239 (1): Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
• Article 239AA (2a): There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
• Article 239AA (3): Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
• Article 239AA (4): There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President […]

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

Constitutional Position of Delhi

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

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

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

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

‘Aid and advise’

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

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

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

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

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

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

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

Initiatives of the Delhi Government

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

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

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

The Home Ministry Notification

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

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

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

Conclusion

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