The SC order on Delhi will lead to further litigations
At the root of this problem was the interpretation of Article 239AA. A textual, conservative interpretation reserved greater power for the LG far beyond the reserved subjects, which remained under central control.analysis Updated: Jul 06, 2018 23:45 IST
Over the past four years, a charged political environment has lead to the loco parentis (in the place of a parent) of Delhi: the Lieutenant Governor (LG) and the city’s government have been fighting an acrimonious battle over its control. Each claimed overlapping exclusivity of jurisdiction and power through a series of notifications, leading to a constitutional gridlock. With the Supreme Court pronouncing a judgment on these disputes — and with both parties claiming victory — questions and confusion continue.
To understand the SC judgment, one first has to understand the creature that is Delhi. It is the seat of the central government and since the adoption of the Constitution it was directly administered by it, without a state assembly. This was to ensure smooth functioning of a seat of power and keep it away from interference of a direct electorate, which would prefer its own interests over those of the rest of the country.
But people continued to fall in love with Delhi, calling it their home. Soon it became one of the most populous cities in the world, advocating the need for a local government.
Such practical realities caused demands for statehood, satisfied by an uneasy compromise of the Constitution (69th Amendment) Act, 1991, which inserted Article 239AA in the Constitution of India and the enactment of the Government of National Capital of Delhi Act, 1991, with the Transaction of Business Rules, 1993.
These legal texts form the basis of the determination of the executive and legislative competence of the Delhi government, but they only created a tenuous relationship, which lacked clear definition due to a mismatch in expectations between the residents of Delhi, who now voted for a local government, but which had little power without the concurrence of the LG, who was effectively under the control of the Union government.
When the relationship between the current LG, Anil Baijal, and the Arvind Kejriwal government broke down, thanks to lack of mutual trust and political brinkmanship, the welfare and development of Delhi stalled.
At the root of this problem was the interpretation of Article 239AA, which was not happily worded. A more textual, conservative interpretation reserved greater power for the LG far beyond the reserved subjects, “police”, “land” and “public order”, which remained under complete and exclusive central control.
At play was a portion of this provision that stated two things.
First, the LG would act on the aid and advice of the Council of Ministers of the State Assembly. But more importantly, the President of India would be the arbiter on any dispute between the LG and the Council of Ministers on any matter. As the President acts on the aid and advice of the Union government, it presented a situation where the State Assembly would be reduced to a nominal and titular body.
The Supreme Court has rejected such a reading of the law, preferring a purposive interpretation, which carries forth the constitutional values of democratic control. It reasons that the people of Delhi deserve to have a say on how the city functions through its State Assembly, and the central government cannot completely usurp its functions acting through the LG. Such a proxy administration on day to day matters cannot be the norm and the LG would have to defer to the Delhi Government, resorting to references to the President only in exceptional cases.
But there are reasons to worry.
The first is that while expounding this judgment in excessive verbiage, the SC has omitted sufficient clarity on the criteria and instances of such, “exceptional cases” where the power of the LG for reference continues to exist.
Second, this judgment is only concerned about the high principles of constitutionality, but not the practical application that will be determined subsequently. This will lead to many further rounds of litigation in which both the LG and the Delhi Government will try to apply the Supreme Court decision to specific functions on which both will seek primacy.
Litigation is a process that requires time, drains litigants, and often spurs further conflict. Such a cynical outcome driven by electoral politics may cause this judgment, which privileges democracy over central power, to become a pyrrhic victory.
Here rests an important lesson that in this War of the Roses, it is the children who will lose.
Today the citizens look beyond the courts to our elected representatives and its politicians for governance. Former Chief Minister Sheila Dikshit aptly captures the challenges of this situation in her autobiography: “The tussle between governance and politics was ongoing and I could never hope for an ideal scenario. What I needed to do was to remain focused and walk towards the future in step with the needs and aspirations of the Delhiite. I too was a Delhiite after all.”
Apar Gupta practises law in New Delhi, India
The views expressed are personal
First Published: Jul 06, 2018 20:18 IST