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Friday, July 01, 2022

Delhi power tussle: Between the Supreme Court’s lines

Supreme Court verdict on Delhi CM vs L-G sends powerful message of pushback by institutions.

Written by Faizan Mustafa | New Delhi |
Updated: July 5, 2018 8:44:01 am
Delhi Lt Governor Anil Baijal with Chief Minister Arvind Kejriwal in 2016 . (Photo: Praveen Khanna/file)

After the Emergency, there was a view that the Supreme Court was suffering from a crisis of legitimacy, as illustrated by its pro-government judgments. In subsequent years, the court tried to dispel that impression through the public interest litigation. After January 12, 2018, when the four most senior judges made public their letter to the Chief Justice of India, fresh concerns were expressed about the independence of judges. Some experts suggested that when a powerful government with a massive majority assumes power, judges do not assert themselves in the same way as they do when a coalition government is ruling.

Wednesday’s judgment on the role of the Delhi Lieutenant-Governor has put to rest such doubts. Even before this, the CJI had decided the Arunachal Pradesh matter against the central government, and the judgment in the Hadiya case too had upheld her right to choose her spouse.

The 535-page, unanimous judgment of the five-judge Constitution Bench comes at a time when the central government has been justifying all actions of the Lt Governor. In fact, no Governor or Lt Governor really acts on his own. Indian Governors have traditionally been loyal to those ruling from Delhi. In the Arunachal case too, the Supreme Court had criticised then Governor J P Rajkhowa.

Also read | Decisions of Delhi govt will not require the concurrence of L-G, says Supreme Court

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CJI Dipak Misra wrote a powerful, 237-page, majority opinion on behalf of himself and Justices A K Sikri and A M Khanwilkar. Justice D Y Chandrachud, after the judgment on privacy, wrote yet another authoritative opinion in which he concurred with the CJI and noted that democracy is in danger from authoritarianism in several countries and there is a need for adherence to “constitutional morality”. He listed four foundational principles including secular ideology. Justice Ashok Bhushan, in a 123-page concurring opinion, emphasised purposive interpretation of the Constitution and representative government. Also, Justice Chandrachud allowed the Lt Governor to refer to the President only such matters that jeopardise national interest, thus narrowing the scope of the L-G’s power to do so.

AAP-LG standoff: Delhi CM Kejriwal hails SC's verdict New Delhi: Delhi Chief Minister Arvind Kejriwal being welcomed by government and staff at Delhi Secretariat, in New Delhi on Wednesday, July 04, 2018. (Source: AAP/Twitter via PTI)

Fundamental principles

Justice Misra devoted 120 pages or so to elaborating on 12 fundamental principles of India’s liberal constitutional democracy, with constitutionalism or the concept of limited powers as its central idea. He stressed purposive interpretation and sustenance of the “glory of constitutional democracy” so that the constitutional promise of representative democracy to citizens is fulfilled.

He observed that courts need to adopt pragmatic interpretation to further the spirit of the Constitution, rule of law and participatory democracy. The text of the Constitution, he observed, is to be read in the light of its avowed purpose and spirit. Quoting Thomas Jefferson, he said that a just government should derive its powers from the consent of the governed. Towards the end of his judgment, he used these very ideals in laying down the law on the powers of Delhi’s Lt Governor.

Justice Misra came down heavily on authoritarianism and reckless exercise of powers by any constitutional authority. In fact, he was indirectly deciding against himself — being a top constitutional functionary, he too is to be now guided by these high principles in the constitution of benches and the selection of judges.

The CJI also talked of the possibility of an elite, monopolising democracy and converting it into a government of the elite. But he did not highlight the dangers of majoritarianism — representative governments, at times, do turn against minorities and violate the spirit of the constitutional pact on the basis of which the nation itself was created. But he did say that every representative government must have accessibility and approachability and such a government should never sacrifice what the CJI termed the “conscience of the constitution”.

Justice Misra agreed that “constitutional morality” — absolute and unqualified adherence to constitutional principles — is not a natural instinct and concerted efforts need to be made to cultivate this fundamental value. He talked of “constitutional objectivity” as an idea of checks and balances so that the legislature and the executive operate only within their limited allotted spheres, as “legitimate constitutional trust” is based on separation of powers, with denial of absolute power to any one functionary being the larger goal.

L-G & ministers

The authoritative finding is that the Lt Governor is just an “administrator” and administrative head in a limited sense, and that he is bound by the “aid and advice” of the Council of Ministers. He has no independent powers of his own; he has to either go by the advice of ministers, or comply with the orders of the President on matters referred to him. He cannot interfere in every case, there is no need of his concurrence in each matter, and he can refer matters to the President only in exceptional situations and not in a “routine or mechanical manner”. This means the court has reversed the Delhi High Court judgment that had held that the Lt Governor is not bound by the “aid and advice” of ministers.

The CJI held that “any matter” in Article 239AA(4) does not mean “every matter”; the Lt Governor has to employ “constitutional objectivity” and exercise this power in the rarest of rare situations for valid reasons. The Lt Governor does not have the power to change every decision or differ with every decision of ministers. Certainly, just like Governors, he is to be apprised of every decision by the ministers, but his concurrence is not necessary. The CJI explicitly held that the Lt Governor’s difference of opinion with ministers should never be based on a perception of a “right to differ”, but should be based on “constitutional trust”. At the same time, ministers must keep in mind that Delhi is not a state and the Lt Governor is not a titular head; rather, he enjoys the powers of an administrator.

While negating the Centre’s arguments on the powers of the Lt Governor, the CJI did say that neither the Lt Governor nor ministers should feel that they have been lionised. They should rather feel that they have to serve constitutional norms, values and concepts.

The CJI concluded his judgment with an idea of “constitutional renaissance”, which is not a mere revival of old ideas but a blossoming of both expressed and silent ideals of the Constitution.

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The writer is vice chancellor, NALSAR University of Law, Hyderabad

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