Collaborative federalism, constitutional morality, special status: Supreme Court’s Delhi judgment explained

[dropcap]T[/dropcap]here is finally some clarity on the governance mechanism in Delhi, and hopefully the administration of the national capital territory will not hit a wall because of files being transferred from the Chief Minister to the Lieutenant Governor only to accrue comments of non-approval. After six months of long wait for the judgment, on an appeal against the Delhi High Court decision of August 4, 2016 that held the LG to be the executive head of the national capital territory, the Supreme Court, on July 4, 2018 has given a unanimous judgment upholding the supremacy of the will of people and their elected government. The three separate, but concurring, opinions of the five-judge bench reflect the same conclusions, but in their respective opinions, emphasise on certain issues that are a window into their reasoning for reaching those interconnected conclusions.

The common operative conclusions which will have a practical impact on the working relationship and the exercise of executive power of the CM and LG are:

• The governance scheme of Delhi as under Article 239AA carves a special status for Delhi, and it mandates a legislative assembly for the territory, along with the power to make laws on all subjects in the state list, except for subjects of land, public order and police.
• The legislative power is co-extensive with executive power, and the elected representatives of Delhi will have the power to execute policies and laws on subjects on which they have the authority to legislate.
• The aid and advice of the Council of Ministers on matters except those related to land, public order and police is binding on the LG, who is a titular head.
• Any matter does not mean every matter. The LG can only have a difference of opinion on matters related to land, police or public order, on which he has to refer the matter to the President for his consideration. Such difference of opinion has to be substantial and not trifling.

Collaborative federal structure: Judgment of Chief Justice Dipak Misra, with Justices Sikri and Khanwilkar

The opinion written by Chief Justice Dipak Misra, in which he is joined by Justice Sikri and Justice Khanwilkar, devotes a substantial portion to the understanding of federalism, and its fusion with democracy to achieve an "egalitarian social order". Under the Constitutional scheme, neither are the States isolated islands, with their distinct vision, nor is the Union government meant to affect the interests of the States. In a collaborative framework of federalism, the Chief Justice holds that there should be a sincere effort to avoid conflict, not encroach on each other spheres. To exercise authority, "there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them."

Collaborative federalism entails a lining of negotiation and coordination to ensure that the governance works within the circumference of the Constitution and in harmony. Such an implementation does require a continuous interaction between the Union and State governments.

The implementation of theoretical aspect of collaborative federalism arrives with the introduction of pragmatic federalism. Even in the scheme under the Indian Constitution, with certain overpowering "unitary" features where Union can weigh in, pragmatic federalism ensures that along with incorporating negotiation and deliberation as the key features of their functioning, the federating units (States) and the Union are able to come up with innovative solutions to problems that emerge in a federal setup.

The Chief Justice concludes his opinion on federalism with a portion on "Federal Balance", wherein he states that in a federal form of government, the collective will of the people is to be given primacy, and it becomes even more significant to give effect to their sovereignty in a democracy.  

To attain the ideal balance in a federal structure, he suggests the Union and the States to have "mutual respect and deference to actualise the workability of a constitutional provision".

The Chief Justice's opinion with regards to federalism gives the impression of not only clarifying the position of federalism, but in effect telling the Union and States to work according to the rules. The multiple references to "discipline", "statesmanship" also seem like cheeky remarks on the recent incidents where the Chief Minister staged a protest at the LG's office for days at a stretch, prompted by the bureaucratic boycott from IAS officers for months at a stretch.

Justice D Y Chandrachud: Constitutional morality

Justice Chandrachud commences his opinion from the importance of institutions in a democracy. With what feels almost like a reprimand, he writes that, "Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern." Interestingly, both Justices Chandrachud and Bhushan quote Dr B R Ambedkar's speech to the Constituent Assembly, where the latter puts the burden on the executive, not the text of the Constitution.

Quite eloquently, he says,"…Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics."

Justice Chandrachud, in a classic academic style, details the concept of constitutional morality, and underpins the responsibility for upholding such principles on the individuals who hold high constitutional offices and institutions. In a succinct manner to summarise the concept, he states: "Constitutional morality reduces the gap between representation and legitimacy. It is only when political conflicts are regulated through negotiations and accommodation that the enforcement of constitutional principles can be achieved."

He spends a considerable time to detail the need for tolerance, diversity, plurality, and dissent in the fabric of democracy. This was in lieu of understanding the gravity of "difference of opinion" that may arise between the Council of Ministers and the LG.

While vehemently defending the sovereign and collective will of the residents of Delhi to repose their faith in their elected government, Justice Chandrachud upholds the special status of Delhi in the constitutional scheme. He further enunciated the principle of aid and advice, and remarked that the binding nature of such aid and advice of the Council of Ministers on the titular head is reflective of the aspirations of the residents in the territory for decisions to be taken by their elected representatives on their behalf.

Echoing the sentiment of the Chief Justice, Justice Chandrachud too comments on the need for mature statesmanship in a situation such as Delhi. He remarks: "Delhi is an amalgam between national concerns and representative democracy. There is no gainsaying the fact that the control by the Union, is also control of the President acting on the aid and advice of the Union Council of Ministers, which in turn owes collective responsibility to Parliament. Constitutional statesmanship between the two levels of governance, the Centre and the Union territory, ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience."

As a surprising addition in his opinion, he elaborated that Article 239AA which covers the governance scheme of Delhi is a part of basic structure. While holding that representative government is an essential part of democracy, a constitutional amendment that enhances a key feature, also becomes part of the basic structure. 

Justice Ashok Bhushan

Justice Bhushan's opinion among other things, adds to the judgment in terms of recalling the history of Delhi's governance and explaining the importance of a national capital.

He narrates the decision taken by the British to move the capital from Calcutta to Delhi in the aftermath of conflicts on jurisdiction and authorities between the provincial government and the central government. Justice Bhushan quoted Lord Hardinge where he suggests shifting the national capital as, "the Capital of a great Central Government should be separate and independent, and effect has been given to this principle in the United States of America, Canada and Australia". With this in mind, the decision to transfer the capital from Calcutta to Delhi was taken on December 12, 1911.

While narrating the tumultuous history of governance of Delhi from being the Chief Commissioner's province, and the examination of its administration by the Balakrishnan Committee, Justice Bhushan sets the context for why NCT Delhi was accorded a special status through an amendment in the Constitution.