The Supreme Court's ruling in Delhi's chief minister (CM) versus lieutenant governor (LG) tussle has been met with an Ordinance by the Union government. The author opines that while legality is imperative, one must strive to uphold constitutional morality, as did former President of India K.R. Narayanan and the first law Minister of India Dr B.R. Ambedkar. The author argues that India is gradually witnessing an erosion of the latter.
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FORMER President K.R. Narayanan made power good by remaining true to the Constitution, and above everything, to constitutional morality. Even the longest-written Constitution in the world, i.e., Bharatiya Samvidhan (Indian Constitution) relies on the 'executive' to interpret actions as underpinned by the morality whose framework was created by its founding fathers. This is true in situations where the Constitution vests discretionary powers in the executive, or is silent on a particular matter of jurisprudence, law and policy.
K.R. Narayanan's tenure as the President of India was marked by political tumult, as two Lok Sabha's were dissolved, but the fearless constitutionalist who in his own words "worked within the four corners of the Constitution" never lost sight of the implicit morality each time he questioned, deviated or gently navigated alternative action.
Providentially for Indian politics, Atal Bihari Vajpayee as the head of the Executive, though from opposite partisan schooling and persuasion from K.R. Narayanan, was an avowed constitutionalist too, and Indian politics benefited from leadership that put constitutional morality above plain legality.
“Those in positions of power to uphold the cardinal tenets of the Constitution and its suggested working have changed.
The ongoing tussle between Delhi's LG and CM is frankly old wine in a new bottle. It persisted even when there was a 'double-engine' equation of Sheila Dikshit government in Delhi's Vidhan Sabha (legislative assembly) and Congress-led United Progressive Alliance dispensation at the Centre. Even the fundamental points of tension back then and now are the same, i.e., who gets to 'control' Delhi, and where are the redlines of power segregation between the elected government and the Centre-nominated LG?
It is a question on which the law is amply explicit and has been re-clarified repeatedly by the judiciary, and most recently by the Constitution Bench headed by the Chief Justice of India, Dr D.Y. Chandrachud, which reiterated that the LG can exercise power only in three areas, i.e., public order, police and land.
The Bench zeroed on the specific point of 'services', noting, "As we have held that [National Capital Territory Delhi] NCTD has legislative power over 'services' (excluding 'public order', 'police' and 'land') under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of [Government of National Capital Territory Delhi] GNCTD on service".
“The Constitution Bench reiterated that the LG can exercise power only in three areas: public order, police and land.
The matter should have ended with the judgment as it came from the Bench headed by the highest functionary of the judiciary and the final arbiter on matters of the Constitution, but it didn't. The difference between earlier times of similar flare-ups and now is the smallness of the political spirit at play.
Earlier, a similar clarification with its suggested division of power in the tussle and the accompanying morality would have forced the warring sides to withdraw back to the original lines. Today, constitutional morality is almost imagined to be an enfeebling imperative, hence a circuitous solution that drives home the 'might-is-right' principle is immediately deployed.
The solution may be legal in terms of pure technicality, but it falls short of the hallowed constitutional morality that had got established with the observations of the Constitution Bench, headed by the Chief Justice.
A week after the Supreme Court judgment, the President of India passed an Ordinance titled Government of National Capital Territory of Delhi (Amendment) Ordinance, that gives overriding powers to the Delhi LG when it came to 'services' of transferring, posting and control over officers in Delhi.
“Today, there is no President K.R. Narayanan on the horizon to act as the conscience keeper of constitutional morality.
While the Ordinance provides for the creation of a National Capital Civil Service Authority that envisages the composition of the Delhi CM, chief secretary and principal home secretary, the final approval vests with the LG. Tellingly, it insisted that in case of a difference of opinion, the decision of the LG shall be final.
The comeback from the Central government was disconcertingly fast, when seen in the context of Indian democracy and the woefully slow pace of legislative process that it typically affords. What it reflects sadly, is not necessarily efficiency of governance, but perhaps petty one-upmanship and the disregard of constitutional morality that had been by and large observed historically, irrespective of partisan persuasions in power.
The Chairperson of the Constituent Assembly Dr B.R. Ambedkar had posited, "Constitution is not a mere lawyer's document, it is a vehicle of life and its spirit is always the spirit of the age."
So, has the spirit of the age changed? Have those in positions of power to uphold the cardinal tenets of the Constitution and its suggested working, changed? The short answer is, clearly so.
There are disquieting and consistent observations from credible, apolitical, and professional bodies that are suggesting a worrying trend in Indian democracy— to rubbish the same as 'Western agenda', 'Chinese payroll', 'anti-India lobby', and so on, has been done to death and is clearly political.
V-Dem (Varieties of Democracy) Institute from Sweden classified India as 'one of the worst autocratisers in the last 10 years'. Freedom House put it in 'Partly Free' category and the Institute for Democracy and Electoral Assistance rated India as a 'major decliner' in its Global State of Democracy.
Constitutional tensions, queries and disagreements between the ruling party and opposition-ruled states are timeless, as they are both healthy and necessary. But besides the change in tenor, abrasiveness and utter lack of grace amongst those involved today, it is the diminishment of the institutions of checks-and-balances that is glaring.
“The speedy legislative drafting and the overriding of the observations of the Supreme Court of India are not about legality but of the forgotten commitment towards constitutional morality.
There is no Rashtrapati (President) K.R. Narayanan on the horizon who, as the 'conscience-keeper of constitutional morality', would have presumably returned the Ordinance for reconsideration.
Equally, there is no like of Atal Bihari Vajpayee to accept a contrarian view with the dignity and large-heartedness befitting a statesman, and as behooves the head of the executive of this civilisational land, and the hard-achieved mantle of the 'world's largest democracy'.
The deafening non-query from atop Raisina Hill (Government of India), the speedy legislative drafting and the overriding of the observations of the Supreme Court of India are not about legality but of the forgotten commitment towards constitutional morality.
Ironically, when Vajpayee lost the vote of confidence in 1996, he had exhorted, "These power games will go on, governments come and governments go. Parties appear and disappear. But this country should remain and its democracy should remain eternally."
What makes the absence of such giants in national politics today tantamount is the regrettable sheer absence of the letter and spirit of constitutional morality.