The Delhi high court’s reasoning in its recent ruling on the division of powers between the elected Delhi government and the appointed lieutenant governor disregards certain norms and conventions of constitutional morality.File photo of Delhi lieutenant general Najeeb Jung swearing in Arvind Kejriwal as chief minister of Delhi. Credit: ReutersIt is important to understand the constitutional reasoning behind the Delhi high court’s August 4, 2016 order which states that the National Capital Territory is a union territory (UT) and that the lieutenant governor is its administrative head. It is equally important to understand that the court’s reasoning disregards certain norms and conventions of constitutional morality and that there may be some merit in the Aam Aadmi Party government’s appeal to the Supreme Court.Delhi has a peculiar federal architecture. It is more than a UT – unlike what the high court ruled – but less than a full state. Article 239 of the Indian constitution is the provision that governs UTs: it states, “every union territory shall be administered by the president acting… through an administrator to be appointed by him…” Delhi however is not a UT. The 69th amendment (1991) changed the federal status of Delhi from a UT to a National Capital Territory. Article 239AA of the Indian constitution provides for an elected government with legislative and co-extensive executive powers.But Delhi is also a lesser state in comparison to other states. Article 239AA was added by the amendment to include “special provisions” with respect to Delhi. As per Article 239AA(3)(a), three key jurisdictions of the state list – public order, police and land – are not within the purview of the Delhi government. Unlike other states, Delhi is not a “full state” because it does not have jurisdiction over these three areas.Except these three areas, the language used in Article 239AA (4), that pertains to Delhi, reads identical to Article 163 (1), that pertains to states. This means that the Delhi government’s powers and jurisdictions were intended to be more or less analogous to that of a state government, barring public order, police and land. In both cases, the constitution says that there shall be a council of ministers, with the chief minister as its head, to aid and advise the governor/LG in the discharge of his or her functions. The “aid and advice” clause may sound optional but in parliamentary parlance it is a pretty unambiguous provision that makes the decision of the chief minister binding, as was interpreted by the Supreme Court in the Shamsher Singh (1974) case.Federalism or dyarchyHow do we then assess the high court ruling over “services” which declares a series of moves made by the Delhi government illegal – such as commissions of inquiry into the CNG fitness scam, illegalities by the Delhi and District Cricket Association, policy directions to the electricity regulatory commission for compensation to people for disruption in power supply – since they were made without the approval or views of the LG?A straightforward reading of 239AA(4) leaves little doubt that matters relating to appointments of bureaucrats is a prerogative of the state government and must be done on the “aid and advice” of the chief minister. However, in reality the structural architecture of Delhi is such that it forestalls a straightforward reading. Entry 41 of the state list (p. 273) pertains to ‘state public services; State Public Service Commission (SPSC)’. This means that if Delhi were to have its SPSC, it would have complete jurisdiction over its appointments. Delhi however does not have its own SPSC and draws on the Union’s UT services cadre. This means that transfers, appointments and availability of bureaucrats could well be asserted as a matter of the Union’s jurisdiction.The May 2015 notification by the Ministry of Home Affairs is one such “assertion”. It is a blatant reminder of who the boss is in a quasi state like Delhi. The MHA notification states that along with law and order, land and police, “services” also are outside of the jurisdiction of Delhi state. It says that the IAS and IPS positions come under Centre’s control and that the LG, not the CM, has the power to make appointments, and that LG’s authority is final in appointments of bureaucrats.There are two ways to see this move by the Union government. One would be to ask a simple rule-book question: Can the central government do such a thing? Can it pull rank in this mess of federal anomalies and drafting ambiguities? The high court seems to think it can. Many constitutional experts would concur, many would opine otherwise.A principle often followed in matters of constitutional logjams is “intentionality”, where the intention of provision makers and drafters assumes importance to resolve a impasse. The questions to ask would be: Did the 69th amendment bill, that aimed to change the status of Delhi from a UT to a quasi state, intend to keep the Services out of the purview of the state government? If indeed it did, why were the Services not listed along with land, law and order and police? Are Services being excluded by what is implied by the nomenclature of entry 41 of the state list?Court verdicts should be based on an analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system. As a Latin legal maxim states: ‘no one can properly understand a part until he has read the whole’. A reading of the whole, so to speak, will need to revert to questions of intention behind the 69th amendment and the drafting of 239AA(4). An equally important “constitutional” question to ask would be, should the Union government be asserting authority to appoint bureaucrats against observed conventions of a federal structure which forms the basic structure of the our constitution?A defining feature of a federal democracy is division of power. It is this principle that makes the exercise of power a remit of the elected head and not the nominal heads (president, governors/LGs). Nominal heads have varying degrees of discretionary power (more in quasi states, less in full states), but those are to be exercised with restraint and with an understanding of how the wheels of legislative democracy turn. What is right, therefore, cannot be a matter of what the rule is when the rules are two pronged. The “aid and advice” provision is fairly unambiguous and is meant give the CM the powers of appointment. But because Delhi relies on the Centre for Services, jurisdictions end up being overlapping and conflictual. The contest really is not between legality and illegality – both positions appear to be legally tenable – but between the spirit of parliamentary federalism and a model of dyarchy that has been in disrepute since 1919.Rajshree Chandra teaches political science at Delhi University and is the author of The Cunning of Rights: Law, Life, Biocultures (OUP, 2016)
