Opinion Faizan Mustafa writes: Supreme Court’s Delhi verdict carries promise of a constitutional renaissance

The very first line of the judgment, authored by the CJI, indicates that, in the final analysis, it deals with the asymmetric federal model of governance.

The bench in the Delhi judgment clearly opposed the Centre’s control over services. Since CJI Chandrachud was also on the 2018 Constitution Bench led by the then CJI Justice Dipak Misra, any major deviation from the fundamental principles of that judgment was not on the cards. Accordingly, the judgment has extensive quotes from the 2018 decision. Of course, the CJI deserves appreciation for delivering a unanimous verdict in such a contentious matter.

Justice Misra favoured the purposive interpretation of the Constitution as the Court was concerned with the sustenance of what he had called the “glory of constitutional democracy” — that the constitutional promise of representative democracy to the citizens is fulfilled. He had said people or collectives, who are the real sovereigns, speak through their elected representatives.

Unfortunately, on the issue of “services”, a two-judge bench could not come to unanimity. Justice Ashok Bhushan said that services in Delhi would be under the control of the Centre. Justice A K Sikri did not agree with him and the matter first went to a three-judge bench and finally, to this Constitution Bench. In the latest pronouncement, the Constitution Bench has overruled the opinion of Justice Bhushan and given a landmark verdict in favour of federalism and representative government. Everyone expected that the CJI’s court would give a pragmatic interpretation of Article 239AA to further the spirit of the Constitution, the rule of law and participatory democracy. He had reiterated that the Court cannot take a blinkered view, ignoring the legislative and constitutional history of this provision.

The judgment has upheld the “spirit of the Constitution”, which favours decisions by the elected representatives by yet again emphasising that the Delhi model is sui generis. The Court has observed that in the three identified matters, Delhi — as a Union Territory (UT) — shall be governed by the Centre. This scheme of distribution of powers cannot be disturbed to give a greater say to the central government. The Court categorically held that all UTs cannot be treated in the same way. UTs with a legislative assembly of their own are akin to states and their government’s executive powers would extend to all matters on which their legislative assemblies can make laws.

Thus, there is no homogenous class of UTs. Justice Chandrachud in explicit terms negated the theory of an identical relationship between the Centre and all UTs. The CJI has observed that “the design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different states and UTs… It preserves the local aspirations of different regions”. He went on to observe that the “unity within diversity” is not only used in common parlance but is also embedded in our constitutional structure. Accordingly, constitutional interpretations must give substantive weight to this underlying principle.

Giving a new impetus to pluralism, Justice Chandrachud said that federalism in a multi-cultural, multi-religious, multi-ethnic and multi-linguistic country like India ensures the representation of diverse interests. In a veiled reference to the proponents of over-centralisation who believe that “one nation, one government” will make India strong, Justice Chandrachud observed that “recognising regional aspirations strengthens the unity of the country and embodies the spirit of democracy”.

He also cited the example of several states that have been given special autonomy under Article 371 to justify asymmetric federalism with the accommodation of differences and specific requirements. How much will the Court rely on this accommodation or autonomy principle while examining the constitutionality of the near abrogation of Article 370 in respect of the erstwhile state of Jammu & Kashmir, particularly on the issue of division of the state into two UTs, remains to be seen.

The Court has rejected the argument that the Constitution is federal but has strong unitary features in respect of UTs. It quoted B R Ambedkar, who said in the Constituent Assembly the dual polity of the proposed Constitution will consist of a Union and states, each endowed with sovereign powers to be exercised in their respective allotted arenas. Ambedkar clarified that the Indian Constitution is neither a league of states nor are the state administrative units or agencies of the government. He also said that the “Centre and states under the Constitution are co-equals”. Accordingly, the Tamil Nadu Chief Minister insists that the central government should be addressed as a Union of States. Relying on Ambedkar and the S R Bommai judgment (1994), Justice Chandrachud has concluded that the states are not subservient to the Union or its mere appendages.

Delhi must be governed by its elected representatives. In two different electoral processes, “we, the people” express our will. Unless the services in Delhi are brought under the control of Delhi’s elected government, the welfare of the people cannot be assured and the triple chain of accountability cannot be maintained. Let Delhi’s elected representatives now demonstrate austerity, honesty and the constitutional values that would contribute to the much-needed constitutional renaissance. They must remain consistent on federalism and support other regional autonomy battles.

The writer is an expert in constitutional law