– Preetika Mathur
The Indian Supreme Court handed down its long awaited judgment in the case of NCT Delhi v Union of India (“NCT Delhi”) recently. NCT Delhi is a landmark judgment for representative Parliamentary democracy in India. The NCT Delhi judgment is particularly interesting because of the use of constitutional history to determine the nature of democracy in Delhi and to define the proper institutional relationships within the Indian Federal Scheme.
India is characterised by its ‘asymmetric federalism’ – a version of federalism where legislative and executive power is divided between the Central Government and various sub-units with varying levels of legislative and executive autonomy. In India, the federation consists of the Central Government, States and Union Territories. States are the sub-units with the greatest level of legislative and executive autonomy and Union Territories with the least. Specifically, the dispute in this case arose from the fact that the National Capital Territory of Delhi cannot easily be confined to the category of Union Territory simpliciter. Notably, Delhi is the only Union Territory which has a constitutionally mandated elected legislature. Article 239 AA was added to the Constitution in 1991, creating the Legislative Assembly of Delhi. Article 239 AA of the Constitution also bestows on Delhi a Council of Ministers made up from the elected legislature with a Chief Minister at its head. Article 239 AA further provides that Delhi will have a Lieutenant Governor (appointed by the Central Government and not directly elected) and that it will be the job of the Council of Ministers to ‘aid and advise’ the centrally appointed Lieutenant Governor.
The dispute in the NCT Delhi case arose from a relatively rare occurrence. This is of the election of a Delhi Government that was politically opposed to the elected Central Government. The Delhi Government complained that the Lieutenant Governor was blocking the implementation of decisions reached by the Council of Ministers pivotal to the governance of the Capital. For example, the Delhi Government argued that the Lieutenant Governor failed to approve several initiatives such as the creation of primary care centres, slum rehabilitation & housing measure, revision of minimum wages as well as inquiries into corruption allegations.
The main legal issue in the case was whether the Lieutenant Governor was merely a nominal head who was bound by the ‘aid and advise’ of his Council of Ministers or whether the Lieutenant Governor was the real executive head of the Delhi Government and not bound by the ‘aid and advise’ of his Council of Ministers. Whilst the Constitution explicitly provides that the President of India is bound by the ‘aid and advise’ of his Council of Ministers at the Central Level, the Constitutional text leaves scope for dispute in the case of the Lieutenant Governor and the Delhi Government.
The Central Government and the Delhi Government approached the issue from two fundamentally contradictory premises. The Central Government claimed that the National Capital Territory of Delhi was a Union Territory simpliciter. The Delhi Government claimed that Delhi was a unique constitutional hybrid of a State and a Union Territory. These contradictory premises led to two diametrically opposed interpretations of the same constitutional provisions.
The Constitutional Scheme
In the Indian Constitution executive power is coextensive with legislative power. This is necessary to enable the executive to govern and to implement the laws passed by the relevant legislature. The Delhi Government used this fact to argue that the Lieutenant Governor was bound by the ‘aid and advise’ of his council of Ministers in all areas in which the Delhi Government was competent to legislate. The Central Government used this very fact to reach the exact opposite conclusion – that the Lieutenant Governor was not bound by the ‘aid and advise’ of his council of ministers even on those areas in which the Delhi Government was competent to legislate. The Delhi Government relied on Article 239 AA (3) (a) whilst the Central Government relied on its plenary legislative powers under Article 246 (4).
The Delhi Government relied on Article 239 AA (3) (a) which sets out the areas in which the Legislative Assembly of Delhi can make laws. It argued that under Article 239 AA (3) (a) it had the same powers as a State to make laws barring a limited exception. It could legislate on every matter in the concurrent list (in which both the centre and states have legislative capacity). It could also make laws on every matter on the State list barring Entry 1 (Public Order), Entry 2 (Police) and Entry 18 (Land). Therefore, since executive power is coextensive with legislative power, and that it had the same legislative competence as a State in all circumstances apart from Entry 1, 2 and 18; it also had the same executive competence as a State in all circumstances apart from Entries 1, 2 and 18. The Delhi Government argued that since the Governor of a State is bound by the ‘aid and advise’ of his council of ministers in those areas in which the State can legislate, the Lieutenant Governor of Delhi was also bound by the ‘aid and advise’ of his Council of Ministers in all areas in which the Delhi legislative assembly could legislate.
The Central Government argued that under Article 246 (4) of the Constitution it had legislative supremacy and plenary powers with respect to every matter relating to a Union Territory. It argued that since Delhi was not a State but merely a Union Territory the Centre also had coextensive executive supremacy with respect to every matter relating to the Union Territory of Delhi.
The Central Government further pointed to Article 73 of the Constitution which provides:
- Subject to the provisions of this Constitution, the executive power of the union shall extend –
- To the matters with respect to which Parliament has power to make laws;
Proviso: Provided that the executive power referred to in sub clause (a) shall not save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
The Central Government argued that the proviso to Article 73 sets out the only circumstances in which the Union’s executive power is not coextensive with its legislative power. Since Delhi was not a State for the purposes of Article 73 but merely a Union Territory, the proviso to Article 73 did not prevent the Union’s executive power from extending into Delhi.
The Delhi Government’s response to the Central Government’s Article 246 and Article 73 arguments was that since Delhi was treated as a State for all legislative purposes barring Entries 1,2 and 18, that the constitution clearly considered Delhi to be a State for the purposes of the proviso to Article 73. As a result, the proviso to Article 73 which explicitly prevented the Union’s executive power from extending into all matters on which a State was competent to legislate also explicitly prevented the Union’s executive power from extending into all matters on which the National Capital Territory of Delhi was competent to legislate.
The Mechanism of Presidential Referral
The issue gets even more complicated with the mechanism of Presidential referral. Article 239 AA gives the Lieutenant Governor the power to refer differences of opinion with his Council of Ministers to the President for final decision. Referral to the President in effect means referral to the Central Government executive because the Constitution explicitly says that the President ‘shall’ be bound by the ‘aid and advise’ of his council of Ministers.
The Centre argued that the Lieutenant Governor could refer a difference of opinion with his Council of Ministers in every instance including on those matters on which the Delhi Government was competent to legislate. The Centre argued that this mechanism of Presidential referral was effectively a veto which allowed them to override the decision of the Council of Ministers in every instance. This meant that the Lieutenant Governor was the real executive head of the Delhi Government and not bound by the ‘aid and advise’ of his Council of Ministers.
The Delhi Government read down the mechanism of Presidential referral. It argued that the proviso could not be used to determine the division of executive power as between the Lieutenant Governor and Council of Ministers. They argued it merely governed the limits of the executive power that was ultimately vested in the Delhi Council of Ministers. It further argued that the Lieutenant Governor could only make a presidential reference on rare and exceptional matters.
Decision of the Indian Supreme Court
The Indian Supreme Court found overwhelmingly in favour of the Delhi Government. The five judges on the bench (Mishra C.J., Chandrachud J., Khanwilkar J., Sikri J., Bhushan J.) delivered three separate concurring opinions.
All of the judges agreed that where conflicting textual interpretations are possible, the Constitutional interpretation that best achieves representative democracy was to be preferred. The Court relied heavily on constitutional history (both Indian and British) to determine the nature of representative democracy in Delhi and therefore the outcome that would best achieve it.
The majority held that the insertion of Article 239 AA into the Constitution was an exercise of constituent power that was intended to entrench Westminster style parliamentary democracy in Delhi through a Westminster style cabinet system of government. This Westminster style Parliament and Westminster style Cabinet were modelled on the British system and incorporated in the Indian constitution.
The Supreme Court then went on to consider the essential features of a Westminster style cabinet system of Government in order to understand its implications for Delhi. To do this the Supreme Court relied on the works of constitutional historians such as Dicey, Sir Ivor Jennings and Geoffrey Marshall. It also relied on its own historical analysis of the Westminster style cabinet system carried out in its earlier decisions of Ram Jawaya Kapur v State of Punjab and Shamsher Singh v State of Punjab. Using these sources, the Supreme Court concluded that an essential aspect of the Westminster style cabinet system of government was the principle of ‘collective responsibility’. It noted that in England this meant that the unelected sovereign was bound by the aid and advise of their directly elected Council of Ministers. This is because the Council of Ministers was accountable to the House of Commons and enjoyed the confidence of the House of Commons. The binding nature of the aid and advise of the Council of Ministers was therefore vital for responsible government within a Westminster style system of Government. The Supreme Court held that the powers of the Lieutenant Governor like the powers of the President of India and the powers of the Governor of a State were analogous to the Crown within the British Parliamentary System.
The Supreme Court held that since the Indian Constitution had incorporated a Westminster style Parliament and a Westminster style cabinet system this meant that in Delhi the Lieutenant Governor was bound by the ‘aid and advise’ of his Council of Ministers in those areas in which Delhi had legislative competence.
The Supreme Court was also unanimous in its conclusion that the mechanism of Presidential referral in the proviso to Article 239 AA (4) should be interpreted restrictively. To allow the Lieutenant Governor to refer a difference of opinion with the Council of Ministers on every matter would render the entire Governmental apparatus conferred on Delhi through Article 239 AA otiose.The proviso could not be interpreted in this way. Interpreting the proviso so broadly would nullify the exercise of constituent power that led to the insertion of Article 239 AA into the Constitution. On the contrary, the Lieutenant Governor would only be able to exercise the power of Presidential referral on “exceptional matters”. Chandrachud J’s separate opinion further elaborated that “exceptional matters” would be matters “in the national interest”.
The NCT Delhi case is important because when faced with conflicting textual interpretations the Court chose to prioritise the interpretation that would give citizens the biggest say in shaping the policies that govern them at the most immediate level. The Court cut through the complicated textual arguments to find the solution that would most meaningfully operationalise representative democracy. To do this it relied heavily on Constitutional history to shed light on the nature of democracy as it exist in India today. It took the view that the nature of modern democracy is embedded in the historical events that have shaped it. As such, this case is important precedent because of the use of history to shape citizen-State relations in India today.
The author is a lawyer specialising in Public and Constitutional Law who works in London and Delhi. She assisted the Government of Delhi in NCT Delhi v. Union of India as an Associate in the chambers of Mr. Gopal Subramaniam, Senior Advocate, Supreme Court of India.