Court: The Supreme Court of India
Citation: (2018) 8 SCC 501
Coram – C.J. Dipak Misra, J. A.K. Sikri, J. A.M. Khanwilkar, J. D.Y. Chandrachud & J. Ashok Bhushan
Theme- The Court judged that the Chief Minister and not the Lieutenant Governor (LG) is the executive head of the National Capital Territory (NCT) government.
Subject: Constitutional law
The present case summary majorly focusses on the dissenting opinion by Justice D.Y. Chandrachud. As his opinion favours a federal form of government, it is important to understand people’s will as to by whom they seek to govern by. Regardless of the other judges, he supported the elected form of government. This case summary on the said case is significant as there is a question mark on the democracy. The Constitution provided that both forms of government are co-extensive with each other. In case of a UT with LA, it is necessary to understand that it does not become only centrally administered one. Some statehood has been granted and Delhi holds special status being capital of the Country. It is necessary to understand by interpreting it validly that the nominated ones & elected ones do not become an obstruction in democracy. Reasons for the dissenting opinion prove to be convincing as there should be a balance between both types of government. Further, elaboration will be done at later part of the project. The dissenting opinion is based on certain principles, constitution morality is one of them. The implementation of the Constitution was done to remove social hierarchies and to provide a liberal society where all will be equal. The same is to be achieved through democratic means. If there is a contradiction in the institutions itself, the object of the constitution fails to be achieved.
In April 2015, Najeeb Jung who was Lieutenant Governor of Delhi at that time made a statement that he is not required to send information regarding Police, Land & Public Order to Chief Minister’s office under any law. Home Ministry also supported the LG stating that these three entries fall exclusively in the ambit of LG and therefore are not covered by aid & advice principle. There were many instances which led to the filing of the appeal into Supreme Court.
· Home Ministry stated that Delhi’s state ACB does not have the power to investigate upon Central Government employees on aforementioned matters.
· The LG stayed the decision of the Delhi government to increase circle rates on agriculture land.
· Government of Delhi constituted a commission to investigate into CNG fitness scam allegation matter and said was overturned by Home Ministry by saying that the government does not have the power to set up a commission. Therefore, declared it to be void.
· Delhi government again constitutes a commission to investigate into a scam of Delhi & District Cricket Association. It was declared invalid by the Home Ministry by stating the same reason.
All these continuous events led to a contradiction between the LG & the CM.
Aggrieved by the orders of Ministry, the Delhi Government moved to the High Court of Delhi. The court in the matter ruled that the LG has complete control on all the matters with regard to NCT of Delhi. It also stated that the government does not has the power to set up a commission, therefore their actions are void ab initio. Also, the direction made by Delhi Government to Delhi Electricity Regulatory Commission & nomination of directors to private electricity company was in contravention of the law. Furthermore, the Court upheld the decision of the Home Ministry that ACB cannot investigate employees of Central Government. Matters related to the appointment of public prosecutor; the HC stated that LG is bound to take aid & advice in these matters.
Delhi Government, not satisfied with the same, decided to move to the Supreme Court by way of an appeal.
ISSUES IN THIS CASE
Whether Delhi holds the status of a Union Territory & Lieutenant Governor as its administrative head or of a special State where the LG is bound by aid & advice of Council of Ministers?
Article 239 of Constitution of India which says about the administration of a Ut by the President to the extent as he deems fit. Article 239AA & clauses 3 & 4 of same which was added through 69th amendment for special provisions with respect to Delhi. Section 44 of Government of NCT Delhi Act (hereinafter called as GNCTD Act) 1991 which talks about the conduct of business in Delhi. Transaction of Business Rules & Allocation of Business Rules, 1993 which are to further substantiate the allocation. Section 41 of the GNCTD Act which talks about the power of LG to act in his discretion in certain cases. Section 3(8), 3(58) & 3(60) of General Clauses Act.
On behalf of Appellant-
Counsel on behalf of appellants submits that NCTD occupies special status in the Indian Constitutional Scheme by virtue of Article 239AA & 239AB and consequently through the 1991 Act. Therefore, when interpreted, Delhi does not look like other states which have complete statehood because of federal structure, rather the said provision was drafted to have more control of the union over said UT. It is important to understand that Centre has to maintain foreign relations and to govern such actions, capital of the country is the most important territory with which, sacrifice cannot be done.
The appellant referred to the judgment of the nine-Judge Bench in New Delhi Municipal Corporation v. the State of Punjab to argue that the Union Territory of Delhi is a class by itself distinct from all the other Union Territories envisaged by our Constitution and that the larger Bench had no opportunity to determine in what shape and type the NCTD is distinct from that of other Union Territories. Nonetheless, Delhi has a special status unlike other UTs wherein it enjoys the powers of Legislative assembly. Said 1991 act was drafted for the people of Delhi to elect the representatives of their choice.
The petitioner further submits that the Sixty-Ninth Amendment to the Constitution and the consequent 1991 Act has been passed with the intention of giving the people of Delhi’s NCT a greater say in NCTD governance. The 69th Amendment was intended to advance democracy in Delhi, and hence Article 239AA should be understood in the light of the unique status granted to Delhi among the different UTs and to create democracy within the true meaning of Delhi. Democracy is one of the essential elements of constitutional structure.
As the appellant says, all matters within the jurisdiction of the Delhi Legislative Assembly are equally relevant for matters mentioned in List II and List III of the Seventh Schedule and the effect of Article 239 AA (3) is that they are essentially identical to those in the concurrent list. The inconsistency of Article 239AB would occur if the Constitution allows the Union Government, in the ordinary course of things, to circumvent any executive actions/decisions of GNCTD because the special provision in Article 239AB would never be required in this situation to invoke the administration in Delhi.
On Behalf of Respondents
While the incorporation of Article 239AA provides for the creation of a 36 Legislative Assembly for the Delhi National Capital Territory, the president, through the Lieutenant Governor acting, is nevertheless to remain its Executive Head and that parliamentary powers with regard to Union Territory are not derogated by the inclusion of that Article 239AA.
The respondents submit that the constitutional scheme envisaged for the Union Territories was dealt with in the case of New Delhi Municipal Corporation case, and while the Court had found three types of Union Territories in this case, it was nevertheless decided that those who remained as Union Territories and did not achieve Statehood should remain therefore, Delhi still remains a UT.
The respondents also affirm that Article 239 is a portion of the Constitution and is the cornerstone for Part VIII and that Article 239AA is read in accordance with Article 239, which states that the final Delhi administration shall remain with the President acting through its Administrator.
While Article 239AA grants the legislature of Delhi the power to make legislation in connection with matters provided for in the List II and List III of the 7th Plan, the same article limits this power, if the term “is extended to Union Territories in so far as any such matter is applicable.
Mr Singh referred the Court to Articles 53 and 73 of Article 246(4) of the Constitution in order to reaffirm the fact that the President is still the Executive Head of all Union Territories. It is further advised to ensure that the Executive Power of a Union Territory is not vested on the Ministerial Council / legislative assembly anywhere in the Constitution, including Articles 239A or 239AA. They claim that when the Legislative Assembly was formed, was argued by the appellant,
APPLICATION OF THE LAWS IN CURRENT JUDGEMENT
The administration of a Union Territory under Article 239 is subjected to two provisions. The exercise of actions by the President will firstly subject to Parliamentary law & Secondly, to such extent as he deems fit. Sometimes in matters of doubt as to under whose domain the matter falls, the President directly exercises his power with respect to those matters hence this is not a delegation of power. The provision has been used to determine the status of Delhi. Clause 2 of Article 239AA talks about the election to the Legislative Assembly of Delhi. This provision states that there is a need for participatory democracy & directly elected ones hold the responsibility and they represent the will of people. Therefore, the role of the Legislature in a UT should be considered. Subclause 3 & 4 of the same Article deals with the repugnancy& Council of Ministers respectively. Former one says, in case of repugnancy between a law made by Parliament & of Legislature, Parliament’s law would prevail. This signifies the distribution of power in a UT. The latter one talks about aid & advice of the Council of Ministers and of the difference of opinion. The provision has been interpreted to know in case of difference of opinion, who prevails in a UT. Section 41 of GNCTD is used to clarify the areas which stand outside the ambit of aid & advice of Council of Ministers. The provision removes the concerns raised with respect to aid & advice by the Ministers.
Section 44 of the same act provides allocation power for business in a Union Territory. The provision signifies that unlike a State where allocation is done by the Governor, in a UT it is done by the President. This signifies that majority power vests with the Union in case of Union territory. This creates a distinction between a State & a Union territory. The Transaction of Business Rules & Allocation of Business Rules, 1993 which says that in case of difference of opinion, the LG should try to resolve the matter by discussion with Ministers. Further aforementioned provisions of the General Clauses Act helped here to understand the meaning or definition of term State. It varies in different situations. Sometimes a Union territory is also included in the definition of State and sometimes not. This will be clarified further in this project.
D.Y. Chandrachud, regardless of the majority Judges gave a dissenting opinion in this case. In his opinion, the executive head of Delhi Government is Chief Minister and not the Lt. Governor. But he also stated that Delhi’s status is different from that of the other union territories. Parliament by law make any provision for departure from Article 239(1), which makes the Lt. Governor executive head in a union territory. There is a difference between a union territory & a union territory with a Legislature. In the former one, the Union has all the control but there is a representative local government for the people in case of a UT with Legislature. The institution in a democracy is impacted by statesmanship which depends on those in whom who is on the position of decision making. J. Chandrachud emphasises that it would be an error to understand democracy as the rule of majority or a political system.
Democracy is a basic structure which cannot be infringed as held in Kihoto Hollohan v. Zachillhu case. Enactment of Article 239AA was done by creating an object of a democratic form of government. In a Union Territory the power vests with the Parliament to specify the functions of Legislature of UT. The direct election rule mentioned in Article 239AA signifies the participatory form of government. A Union Territory does not have a Legislature alike the State which has exclusive power over the State list. Government of UT can legislate on matters of State list with certain exception being laid down by the Parliament.
J. Chandrachud stated that aid & advice principle is only applicable where the Legislature has the power to legislate and not on matters on which LG has exclusive power or exercises his discretion. His opinion focussed on a representative form of government should be the executive head. It was held that the LG’s power to act independently violates the provision of representative government (the core of 239AA). Further, each & every matter should not be referred to the Union because then the legislature will be of no use as the Central Government will be only one who acts. The difference of opinion should be discussed and cleared prior to the reference. The Legislature has been given the power and it should not be curtailed. The balance of powers has to be maintained to follow the principle of checks & balances.
*The Judgment is not overruled and it is still applicable*
The main issue which arose here was related to ACB. Whether the ACB falls in the domain of State or that of the Central Government. Since only Entry 1,2,18 of State list are exceptions and fall under the domain of Union. The question which says whether ACB is covered under police or not remains still unanswered. Also, the author emphasises that the question raised on power to set up a commission is still to be answered.
The Union submitted that Entry 41 of State List does not include Union Territories. The author supports J. Chandrachud as he stated that the word ‘State is not dispositive throughout the Constitution. It has to bee seen according to the circumstances that whether the union territories fall in the definition or not. Since only Entry 1,2,18 are excluded, and there is no mention for Entry 41 by the Parliament, it will fall under the domain of State. It remains untouched in the Judgement.
Opinion which says that power should vest with those who are elected one does not seem to be a valid one. If the power which is being exercised by officials is unconstitutional because of the reasons that they were not elected or directly accountable to people, the whole governance will come to halt. No power in the Constitution of India is guaranteed to officials unless they are accountable to people. Therefore, the opinion of Judge cannot sustain. Also, the Judge says that citizen should be governed by those who are the elected ones. This pertains to the very important question that why we need LG then? Since, this is a Union Territory, not all the functions can be exercised by the Legislature & there will be larger control of the Union.
Co-extensive type of government serves the object of the Constitution the best. It is to be understood that checks & balances should be done by one institution over the other. In the author’s opinion, not all the important responsibility can ben handed over to the elected government. There would be some reasons behind declaring the territory to be union territory. Judge focussed on cabinet form of government. The author would disagree to it at some points. If we read different provisions related to union territory, there is more control for the Union. For naming some, in case of repugnancy, the law made by Parliament would prevail. Unlike the States where the Governor allocates the business among the ministers, in union territory it is the President. Also, unlike the States, the Lt. Governor of a union territory is empowered to withhold a bill. He has been given extra assenting power. By reading the provisions of GNCTD Act, there is the intervention of the LG in most of the scenario.
Therefore, by applying the above principles the intention of the Parliament has to be withdrawn to understand the reason behind declaring a union territory. Since Delhi holds special status and it is the capital of India, the Centre is more responsible to the outside world rather than the elected form of government. The State government does not manage outside affairs like the Central Government.
The Judge emphasised on the doctrine of aid & advice which says that the real power to take decisions should be under the control of the elected ones. Here, the author focusses that the Central Government is also the elected to govern the affairs of the country and outside world. Capital is one of the most important parts of the country and the administration of the same should be done by a proper centralised authority.
The aid & advice principle may not be as efficient as the ideologies of different political parties differs. Democracy should not be restricted by a political agenda. Even if the policy is right for the people but being in different political parties would create hurdles in implementing the policy. It is possible that one political party tries to surpass the other.
In addition to the above arguments, the author also agrees on some points with J. Chandrachud. There is collective responsibility (constitutional doctrine) which ensures accountability to the sovereign will of the people who elect the members of the Legislature. The definition of the term ‘State Government’ in the General Clauses Act has been clarified in the best possible manner. It has been emphasised that not in all cases the State would mean the Central Government. The reasons for the same is firstly when the act was enacted, there were no Union Territories with the Legislative Assembly. Secondly, if it means in every situation the Central Government, the State list would be of no use as it would fall under the Centre’s domain. The 69th amendment of Constitution would hold no value for the elected government. Therefore, only the written words should not be read but the intention of legislators and reasonability should be withdrawn.
The judgement underlines the principle of democracy. It, by saying that power should vest in elected ones, promotes freedom among the citizens to choose the representative even in the case of a Union territory. The Judgement interprets Article 239AA and gives an outcome to favour the representative democracy. It is good in a way for the people but cannot sustain in case on union territory as there falls special responsibility of the Centre to intervene. A deep study into the history is done here to understand the status of Delhi. Many statutes are considered to provide a better understanding of the provisions other than what the words say. The author of this project is of the opinion that it was necessary for this case to be of that much number of pages. Full-fledged separate opinion has been given here, and ultimately the Judges talk about the same thing thereafter in the judgement. It could be done in a precise manner with more questions to be answered. There are questions which are left to be treated in the judgement but essential to the case.
The author expects that after the judgement, the elected government of Kejriwal could work without any hurdles by the Central Government. In my opinion, sometimes this is not a question about power or law, rather it is about the ideologies of political parties and their will to surpass each other. By obstructing the AAP government, they could impose allegations to the Delhi government for different contemporary issues. The work should de done irrespective of the political agenda and co-extensive with the other end of government. Hope both the officials, be it elected ones or the nominated ones, govern their actions to do welfare of the people. It is submitted that both are accountable to people and they are governing us in consonance of the Constitution. Therefore, both type of government is equal and not any particular government should be provided with excessive powers which curtails the freedom, liberty of citizens. In my opinion, the judgement had impacted on a good extent as there is not a big tussle in the author’s knowledge has prevailed after the judgement, between Kejriwal & LG. There could be the reason that the then LG is changed now. Whatever it be the principle of democracy should not be ignored in any situation.
Contributed by: Kartik Madaan (Student, Institute of Law, Nirma University)
The views of the author are personal only. (if any)