The Supreme Court in a historic judgement on 4th July has laid to rest the constant squabbling between the Delhi Chief Minister and the Lieutenant Governor on the relative constitutional position that they enjoy. Article 239AA which created National Capital Territory (NCT), Delhi, empowers the elected government in Delhi to legislate on all subjects, except law and order, land and public order where the authority lies with the central government, through the Lt Governor. The limited issue before the court was whether the Lt Governor has to go by the aid and advice of the Council of Ministers in areas earmarked for them or he has a discretionary power to reject them and refer such proposal to the Central government for a decision. The court has clarified that “the constitutional court would be doing a disservice if an elected government is reduced to a mere form without substance”.
On the face of it, the Lieutenant Governor has to act as per the aid and advice of the Council of Minister. The Constitution gives primacy to a duly elected representative form of government. Despite all round reservation about the cantankerous character of Arvind Kejriwal, he is the duly elected chief minister of Delhi. To quote Winston Churchill “At the bottom of all tributes paid to democracy is the little man walking into a little booth with a little pencil making a little cross on a little bit of paper. No amount of rhetoric can diminish the overwhelming importance of the democratic empowerment”. The court has been also been firm enough to observe that in our constitutional scheme of them is there is no room for political anarchy. To quote Chief Justice Dipak Misra “Rational anarchist has no entity in the field of constitutional governance and rule of law. There is no space for anarchy; nor room for absolutism”.
The court judgement has brought clarity to the ambiguity which political players of different spectrum had tried to build into the role of the Lieutenant Governor vs. the Chief Minister of Delhi. All the same the judgement leaves a window of opacity which has not been cleared. Sub Clause 4 of Article 239AA empowers the Lieutenant Governor to refer ‘any matter’ to the President where he has a difference of opinion with the decisions taken by the Council of Minister. The moot area is to define the areas in which the Lieutenant Governor can refer the matter to the President. Justice Dipak Misra, AK Sikri and AM Khanwilkar have referred to standards of constitutional trust and morality, principles of collaborative federalism, constitutional balance and objective constitutional governance to form the basis for such a reference the President by the Lt Governor. This is indeed a generic advice which can be widely interpreted by the Lieutenant Governor. To quote Aaron Levenstein “Statistics are like bikinis. What they reveal is suggestive, but what they conceal is vital”. The present Supreme Court judgement unfortunately does not throw adequate light on this vital discretionary area.
It may be mentioned that after the Delhi government was set up, the Transaction of Business Rules were notified in 1993. They throw light as to how difference of opinion between Council of Ministers and the LG are to be resolved. Rule 49 says that where there is a difference of opinion, the endeavour should be to settle the point through discussion. The Lieutenant Governor can also direct the matter to be referred back to the Council of Ministers for reconsideration. Rule 50 of 1993 Act also clarifies that prior concurrence of Lieutenant Governor in every matter, except in land, law and public order would negate the ideals of representative governance as envisaged for NCT, New Delhi by Article 239AA. The court has clarified that the words “any matter” employed in the proviso to Clause 4 cannot be informed to mean “every matter”.
Justice DY Chandrachud along with Justice Ashok Bhushan in a concurring judgement have observed that the Lieutenant Governor can seek recourse to this proviso where the executive Act of NCT “is likely to impede the executive power of the Union. It has to be substantial and not trifling so as not to transfer decision making power of NCT to the Centre”. Justice Chandrachud has been quick to observe that it may not be possible to catalogue all differences that cannot be “contrived in nature”.
Dr BR Ambedkar in an interesting intervention in the constituent assembly had observed that “democracy in India is only top dressing on an Indian soil, which is essentially undemocratic”. This is indeed a very harsh view of how Indian democracy. Except for the brief interregnum of (1975-77) when emergency had sutured the democratic record of India, India has been a thriving democracy where popular representative opinion had stood the test of times. To the credit of Arvind Kejriwal, Delhi had achieved remarkable improvement in its public schooling with addition of 8000 new school rooms, significant improvement in the school infrastructure, parent teachers meeting and extra attention to student who were categorised in the “Nistha” group.
The flash point of the present fracas between the Lieutenant Governor and Delhi Chief Minister was on the issue of delivering rations at the door steps of city dwellers every month instead of standing in a queue. The Lieutenant Governor had suggested that there should be greater attention to strengthen the digital services. The Supreme Court had rightly observed difference between constitutionary heads should not be based on “obstructionism but by a philosophy of affirmative construction, profound sagacity and judiciousness”. It is a testimony to the Indian democracy and respect for the independent views of the Supreme Court that the LG has now cleared the proposal for door to door delivery of ration. CJI Misra has observed that when citizen feel that there is participatory government as per the Constitution, there is no space for anarchy, no room for absolutism. Sharing veneration to the great living document, i.e. our Constitution, is constitutional Renaissance. In some sense, the Supreme Court has vindicated the spirit of this renaissance in our democratic discourse, a respect for contrarian viewpoint and most importantly a concern for responsible governance and constitutional morality.
The author teaches Constitutional law
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