Delhi power tussle: law, politics, constitution and legality
Opinion

Delhi power tussle: law, politics, constitution and legality

You come to know about politics when people are denied their rights and are treated cynically as subjects and not as citizens. The most recent example being the attempt by an elected Chief Minister to initiate a program wherein the people residing in the National Capital Territory of Delhi would benefit by getting rations delivered to their doorstep but Lt. Governor, an unelected nominee of the Central Government run by a political rival stalled this by misusing his powers.

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Today, the Supreme Court by a 5:0 majority judgement brought relief to the common people and reassured that there are still good people fighting a good fight for their rights, for the citizens it reaffirms that the foundational principles of our constitution still intact and for the poor a relief from hunger.

The Judgment states nothing new but reiterates what is said in the constitution. It does not confer any new power to the State Government. It merely reminds the lieutenant governor of Delhi that he is merely a  ‘titular head’ bound by the “aid and advice” of the council of ministers of the elected government of Delhi for all matters under its jurisdiction. The Supreme Court verdict acts as a reassurance to the people of India that we are a federal parliamentary democratic republic in the quest for equality and bound by the rule of law and that the days of the British Raj with its Governor General calling shots are over.

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The National Capital Territory of Delhi enjoys a distinctive and special position in the Constitutional scheme. The nine-Judge bench Judgment of the Supreme Court in New Delhi Municipal Corporation v. the State of Punjab makes this position very clear. Delhi has unique constitutional status unlike other Union Territories by virtue of the constitutionally created Legislative Assembly, Council of Ministers and Westminster style cabinet system of government that has been brought by the Sixty­ninth Amendment and the 1991 Act.

The separate concurring Judgment of Justice D.Y. Chandrachud discusses in great length the principles of Constitutional morality. He reminds us that if the moral values of our Constitution were not upheld at every stage, the text of the Constitution may not be enough to protect its democratic values. This statement is a reminder to the Central Government that has on several occasions ignored constitutional morality for its short-term gains be it by bringing important legislation as money bills or legislating through an ordinance. Similarly, in case of Delhi, the Central Government through the Lt. Governor has acted as a hindrance to the development of Delhi. When the Central Government becomes a hindrance in working of the State Government then it inflicts great damage on the federal structure as well as on constitutional morality. The Judgment of CJI Dipak Misra, therefore, holds that the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co­existence and interdependence so as to avoid any possible constitutional discord.

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As stated by the constitution the elected representatives are answerable to the people and  This is what principles of democracy envisage. J. Chandrachud observes thus “An elected government reflects in a democracy, the aspirations of the people who vote to elect their representatives. The elected representatives carry the responsibility of giving expression to the political will of the electorate. In a democratic form of government real power must subsist in the elected arms of the State.”

A very important aspect of the Judgment is that it mandates that the Lt. Government be informed of all proposals, agendas and decisions taken but the Court rightfully observes that the concurrence of the Lt. Governor is not required. The Lt. Governor is bound by the “aid and advice” of the Council of Ministers except when he chooses to refer a matter to the President. The Court recognizes the power of Lt. Governor to refer the matter to President but clearly states that the term “any matter” as mentioned in the provision to Article 239(AA)(4) will not mean “every matter”. The Court also emphasized the need for dialogue and discussion, in order to resolve any difference of opinion with a Minister before making a reference to the President. However, the Judgment falls short of giving detailed guidelines on what matters can be referred to the President. This loophole can be abused by the Central Government or Lt. Government to create more obstructions.

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We need to rise above politics to save our parliamentary democracy and as Arun Jaitley had remarked in a Facebook post that the Indian democracy could not be a “tyranny of the unelected”. Democracy, he said, would be in danger if the elected are undermined. This is exactly what the Supreme Court did today, it showed the people of India that But every crisis presents an opportunity, for judgement ensured that whatever political party might be in power, the federal structure of India and the administrative rights of the NCTD remain intact.

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NEWSD and NEWSD does not assume any responsibility or liability for the same.

Anas Tanwir is a lawyer practising at Supreme Court of India, he tweets at @Vakeel_Sb

Sanobar Fatma is an academician interested in polity, she tweets at @SanobarFatma

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