Judicial scrutiny of The GNCTD (Amendment) Ordinance, 2023, might throw up questions of political legitimacy despite clarity on the legal front. It will likely sharpen the debate on who, between constitutional courts and Parliament, has the authority to make decisions in a democratic polity. Just as in the cases on same-sex marriage, personal laws, Sabarimala, and the power over services in Delhi, we will witness arguments on the legitimacy of courts, with Parliament assuming democracy as an argument exclusively available to itself. That assumption is incorrect. In fact, if legal positions are clear, a decision by a court is equally, if not more, democratic than one by Parliament. Constitutional actors must pay attention to this seemingly counterintuitive stand.
Legal questions surrounding the ordinance already present much clarity. The ordinance aims to do what only a constitutional amendment can do: Take away the power over services available to the Delhi Government under Article 239AA. Since the Article does not make any exception for any entry in List II and III of Schedule VII, apart from public order, police, and land, it is unclear how a quasi-legislative device like an ordinance can take away a constitutionally-conferred power over services. Even a constitutional amendment would have to pass the muster of the basic structure test that identifies democracy and federalism as features of the Constitution.
The argument that Parliament can divest the Delhi government of power over services because it has overriding powers to legislate on a concurrent item under Article 239AA is also flawed. A constitutionally vested power cannot be divested through ordinary law-making power. Article 239AA does not confer amending powers. Thus, Parliament may “occupy a field” under services by law but it cannot revoke a law-making power. To do so with amending power is improbable as the Supreme Court’s decision on services located the Delhi Government’s power not merely in Article 239AA but in the basic features of the Constitution.
Any parliamentary law on services in Delhi will have constitutional limitations. The ordinance’s objective of setting up a National Capital Civil Service Authority with ultimate power in the hands of the Lieutenant Governor has weak constitutional moorings. It runs contrary to the principle of representative democracy that is founded on self-determination through participation: That citizens have a say in matters that affect them. Water, electricity, education, etc., are services that affect Delhi’s residents. They, therefore, must have a say in these matters through their elected representatives. Those representing other parts of the country have a negligible stake in these matters. That is the principle on which federalism in India and subsidiarity in the EU are based: Those affected by a decision must have the largest say. Federalism is a democracy-complementing principle allowing for the relevant populace to self-determine. M K Gandhi’s principle of Swaraj is based on the same moral foundations.
Despite clarity on these legal questions, the underlying question of democratic legitimacy will influence constitutional interpretation. After all, Parliament chose to lay a second claim to the issue despite an existing SC ruling. Though questions of political legitimacy do not directly feature in legal disputes, they do affect how constitutional actors view their roles. If a court believes that democratic legitimacy largely lies with the legislature, it will interpret the separation of powers in a way that limits judicial reach. If it views judicial processes as rooted in democratic principles, it will interpret the separation of powers without curtailing legitimate judicial authority.
Presently, courts rely on the supremacy of the Constitution and the protection of rights as sources of judicial legitimacy. But democracy must also be counted as one. Broadly, democracy is classified into thick and thin conceptions. Thick democracy includes virtues such as the rule of law, free expression, and human rights within the meaning of democracy. Thin democracy implies that democracy is essentially about political representation, specifically elections. Even on the thin front, elections are justified because they are a form of participation and expression. The quality of participation and expression are the metrics of democratic credentials, and courts score highly on this count.
Harvard law professor and natural lawyer, Lon Fuller, in a seminal article called ‘The Forms and Limits of Adjudication’ argued that judicial processes allow individuals to participate meaningfully in decision-making. They bring their reasons and proof to convince an authority. They have a right to be heard, and a court’s decision must supply reasons where the individual’s reasons are addressed. Mattias Kumm has called the process one of “Socratic contestation” where questions by judges elicit reasons relevant to a dispute. Individuals, through their lawyers, participate substantively in this reason-giving exercise by supplying answers. Sandra Fredman at Oxford University says that judges augment the power of the electorate to hold the legislature and executive to account. In this sense, judicial processes have strong democratic credentials when they reflect participation and reason-giving. This is bolstered by the structural independence of the judiciary compared to the legislature. Apart from post-retirement jobs, their institutional rules aim to immunise them from non-constitutional reasons.
Consider legislative processes in contemporary India now. There is incontrovertible data that debates rarely take place on important issues. Neither do citizens get to participate in these decisions. MPs are under no obligation to have open hearings and give constitutional reasons for decisions. Electoral computations cloud most decisions. On participation and expression, therefore, Parliament scores low. These democracy-defeating features get compounded by the fact that our Parliament does not represent our population proportionately. To improve, Parliament must become more like courts by taking on reason-giving and participative obligations. As such, it is Parliament that should be on the back foot when it comes to claiming democratic legitimacy.
In the forthcoming tussle over democracy in Delhi, courts should count democracy in their armour and not as a hindrance in presenting the best interpretation of our Constitution.
Pritam Baruah is a legal philosopher and dean of the School of Law, BML Munjal University. Views are personal
