SC gives back Delhi's elected government its powers — but misses a historical chance
The wait is finally over. After more than two years, the five-member Constitution Bench of the Supreme Court delivered a 535-page unanimous judgement on the constitutional status of the Government of National Capital Territory of Delhi (GNCTD). The unique aspect about the "Government of NCT Delhi versus Union of India" judgement is that not only was the case argued by heavyweights including P Chidambaram, former Finance Minister and senior lawyer Prashant Bhushan among others, the verdict contained three different judgments.
While the Chief Justice of India Dipak Misra drafted a majority opinion on behalf of justices A M Khanwilkar and A K Sikri, Justices D Y Chandrachud and Ashok Bhushan wrote their own judgements. The unanimous judgement that strongly reiterated the constitutional position of respective actors in the national capital territory, viz the LG and the Council of Ministers, is also a brilliant exposition on the rule of law, principles of participatory democracy and collaborative federalism, the concept of limited power and constitutional morality.
While it is not easy to capture the essence of a voluminous verdict containing three separate judgements in a column, a few observations are in order. First, the judgement does well to restore the constitutional position of the respective governing agents in Delhi as envisaged in the 69th Constitution (Amendment) Act, 1991 — in doing this, the SC Bench overturned an erroneous 2016 judgment of the Delhi High Court that had completely sided with the LG and the Union Government. Going against the letter and spirit of the 69th Amendment, the single-judge Bench under Chief Justice G Rohini ruled that the LG was the administrative head of the National Capital Territory of Delhi (NCTD), thereby not required to act on the advice of the Council of Ministers, even in areas that are exclusive domains of the elected government.
Notwithstanding the differences in their approaches now, the justices were unanimous in restoring the primacy of the elected government on matters that have been listed in the 69th Amendment Act, 1991, especially Article 239AA. They were loud and unanimous in saying that the role of the LG has “no independent powers of his own” and thereby has to act as per the “aid and advise” of the Council of Ministers. In doing this, the Bench has restored the rule of law in favour of the GNCTD.
Second, beyond the executive powers, the verdict restored the primacy of the Legislative Assembly in law-making on all subjects listed in the State and Concurrent Lists, other than reserve subjects, such as public order, police and land — the Delhi High Court had taken away or restricted such sovereign powers of the legislature. Reaffirming the principles of parliamentary democracy, the bench said that a legislative assembly without law-making powers will nullify the very idea of representative democracy that represents “the popular will”.
Third, the SC Bench has shown strong resolve to redraw the boundaries of the LG’s discretionary powers under Article 239AA. Unfortunately, the Constitution is silent on this key power enjoyed by the LG. All three separate judgements have gone to a great length to cite constitutional morality and principles of collaborative federalism to limit the discretionary powers to “exceptional” cases. It noted that being a constitutional functionary, the LG cannot act “mechanically” but with “judgement and reasons and objectivity” as underlined in a constitutional office. Justice Chandrachud took a step further by restricting discretionary reference to “substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union”.
Finally, the judgement also had a message for Delhi’s Chief Minister Arvind Kejriwal and his insurgent party.
While it took exception to the “absolute powers” of the LG, the Bench at the same time warned against “anarchism” of the ruling party in Delhi — without discounting the hostile attitudes of the Union Government, it must be noted that much of the tussles and governance breakdown in Delhi has been largely due to the confrontational attitudes of the Aam Aadmi Party. Reading together the 1991 GNCTD Act and the Transaction of Business Rules, 1993, the bench concluded that the mandated political process for the resolution of disagreements between the GNCTD and the LG was by communication and dialogue, based on the principles of “collaborative federalism”. Making an idealist pitch, the justices called on the LG and CM to work “harmoniously” for the betterment of the national capital territory.
To sum up, the judgment is rich in deliberation and very vocal in its recognition of the primacy of an elected government in the national capital.
It has been able to swing the balance — except in the reserve subjects — in favour of the Delhi government. Yet, the big question is — will this judgement, which many claim as "landmark" or "historic", address Delhi’s major governance challenges?
Very unlikely.
While the judgment does well to reaffirm the primacy of the elected government in the national capital and goes to great lengths to caution the LG and the Union Government while exercising its “exceptional” powers, it hardly does anything to remove ambiguities in Article 239AA and the Rules of Business.
The LG and the Union Government have enormous powers to needle the elected government, including in routine day-to-day functions. For instance, hours after the judgment, the deputy chief minister Manish Sisodia’s order of withdrawing all powers of transfer and posting of IAS officers from the LG was returned to him by the services department. In short, the judiciary is no answer to the cynical adversarial politics that the national capital has descended into since 2015.
However, the bigger disappointment over the judgment is that it missed out the golden opportunity to recalibrate the balance on reserve subjects that are linked to Delhi’s status as the national capital — it would have been really landmark had the judges taken the liberty to expand or reinterpret existing constitutional principles and governance best practices such as subsidiarity and devolution to provide greater space to the elected government of a megacity that is going to grow even bigger in the years to come.
Reserve subjects — particularly land and policing — are vital to a city government. It is quite unusual that an elected government representing a population larger than many Indian states practically has no say on critical areas such as land and policing. Even in Washington D.C, the most restricted capital territory, the elected mayor shares power over policing.
Global trends suggest that many national governments, which earlier had apprehensions about sharing police powers, have gradually begun ceding such powers with the national capital governments. Delhi clearly bucks the global trend and the Supreme Court bench had a rare opportunity to weigh these jurisdictional issues, let alone statehood which was never in the menu. In that sense, the judgment is a missed opportunity in setting many things right in the national capital.