It’s a victory for the people, not any party

Avani Bansal

SC advocate

In the remarkable Constitutional Bench judgment of the Supreme Court in the Government of Delhi v. UOI and Ors. (Lieutenant Governor/LG), both parties seem to claim victory. The spokespersons of AAP and BJP are busy giving interviews and media bytes as to how the other side fell with its face flat. While such political rhetoric is not unique, it's pertinent to understand that the power tussle between the Delhi Government and the LG has no one winner or loser, from today's verdict.

Like in the tale of the 'Samudra Manthan' (Ocean Churning) that yielded many precious 'ratnas' (gems), both parties have something to carry back home, but the real 'amrit' or nectar is the constitutional philosophy that is beautifully elucidated by the judges in three separate opinions. 

To begin with, the Supreme Court categorically said that the parties had presented extreme views on the contours of the power of the Council of Ministers and the LG. At page 46, the court says: "We do not think and we are not persuaded to think that the present controversy can rest on either of the extremes propagated before us."

The appellants' side, presented by a battery of five senior lawyers — P Chidambaram, Gopal Subramaniam,  Rajiv Dhawan, Indira Jaisingh and Shekhar Naphade — argued that the Council of Ministers need not take the concurrence of the LG on 'every matter' that concerns the governance of Delhi. 

The respondents were represented by  Maninder Singh (ASG) and argued that even after the insertion of Article 239AA in the Indian Constitution, the President of India remains the head of Delhi through the LG, and his powers cannot be derogated. 

While the spokespersons of both AAP and BJP have portrayed this as their day, the 535-page judgment reveals the Constitution Bench did not accept either of the positions fully. The Bench made it clear that the National Capital Territory (NCT) of Delhi has a unique constitutional position in India's federal structure, as it does not follow the general dual division of units as states or union territories, followed after the passing of the States Re-organisation Act, 1956. While Delhi is a union territory, it has special powers by virtue of the 69th Amendment of the Constitution in 1991 which inserted Article 239 AA and Article 239 AB and the Government of National Capital Territory of Delhi Act, 1991.This means that the union legislature can pass laws on all subjects in the State List and Concurrent List for Delhi, just as the State Legislative Assembly of Delhi can also do (except for three entries). 

On the one hand, the attempt of the AAP to get a full-fledged 'state' status for Delhi clearly failed as the SC held it to be against the constitutional scheme. Being a national capital, it cannot be treated as any other state. On the other hand, the argument of the BJP that the NCT being a UT, the LG has the upper hand in 'all matters' was also rejected by the court. Interpreting the word 'any matter' in the proviso of sub-clause 4 of Article 239-AA, the court said that it cannot mean 'every matter' and held that the LG cannot exercise his powers in a routine manner. The SC emphasised that the powers of the LG have to be exercised on 'valid reasons on due consideration when it becomes necessary to safeguard the UT.' 

The court made it clear that while discharging executive powers, the Council of Ministers need not take the LG's concurrence. It also said that it's quintessential to keep the LG informed and in loop with all the 'proposals, agendas and decisions taken'. 

Expanding on the notion of federalism, and contrasting it with the American federalism, the court elaborated on the quasi-federal structure of the Indian Constitution, which is also 'pragmatic federalism' that has to evolve with the times. 

The nectar that came out of the churning is in the form of the principles invoked and enunciated by the Constitution Bench such as constitutional morality, constitutional trust and constitutional objectivity. It is this nectar that will hopefully inject new life in the otherwise strained relationship between the Delhi Government and the LG. This, in turn, is a win for the people of Delhi who will stand to benefit from the resolution of the longstanding battle between the AAP and BJP. 

In India, such fights as we have witnessed between the Delhi Government and the LG in the past few months are neither unique nor desirable. A similar struggle was seen in Puducherry between Chief Minister K Narayanasamy and the BJP appointed Lieutenant-Governor Kiran Bedi. While we have been a country with many players, it is the spirit of working together, in collaboration, in spite of our differences, not without them, that keep us going. When things threaten to fall apart, it is then that our constitutional glue has to be re-applied to prevent the falling off of the various pieces that knit India together.

Therefore, when a judgment like the one today is pronounced, weighty as it is, its fundamental value lies in once again upholding the age-old constitutional principles that make us a sovereign, socialist, secular, democratic, republic. Ultimately, as the SC said, it is the will of the people that has to take predominance in all affairs of the government. What happens when those elected by the will of the people fight amongst themselves? Well, the rule of law trumps them all. 

This judgment should be seen in the same light. There are no winners or losers, as the hand of the court, once again weaves magic to ensure that 'all fall in line'.