In recent years there has been relatively little in the functioning of their democracy that Indians can be proud of. A shining exception, however, is the higher judiciary whose independence has been zealously guarded by the Supreme Court. But the judgment handed down by the Delhi high court on Thursday, that the Lieutenant Governor of Delhi is not bound to act upon the “aid and advice” of the elected government of the state, because the National Capital Territory is not a state but, “continues to be a union territory” is so problematic that it cannot but cast a pall of doubt upon its sagacity and objectivity.
The court has ruled explicitly that a notification issued by the Union Home ministry on May 21 2015, which over-ruled a 1998 notification that had required the L-G of Delhi to consult the chief minister on matters of public order, police and services, and allowed him to take all such decisions entirely on his own, was valid in law.
Based on this, it upheld the administrative powers of the Lieutenant-Governor (L-G) not only in matters pertaining to public order, land, and police, the three subjects reserved for the centre in the 69th amendment to the constitution that created Delhi state, but also in services, which find no mention in it.
What is more, in the judgment the term ‘service’ is so vague that it can be read to cover almost any action involving the issue of orders to any official of the state government. But there are officers from half a dozen different cadres in the Delhi administration, who have been drawn from the All-India services, the central Services, DANICS (Delhi, Andaman and Nicobar Island services), Indian Post and Telecommunication Finance Service and other services. Does this mean that the Delhi state government cannot issue any order to them without the explicit concurrence of the L-G?
The question is pertinent because in December, Lt Governor Najeeb Jung summarily overruled the suspension of two DANICS officers who refused to obey an order from the cabinet on the grounds that they had been asked to obey instructions only from the L-G’s office. By using the omnibus term ‘services’. Justice Rohini’s bench has vindicated not only the L-G’s overruling of their suspension but every other action that he has taken to deprive the chief minister and his government of civil servants who enjoy his trust, and thereby rendered him impotent.
An even more serious consequence of the judgment arises from its assertion that despite the provisions of article 239 AA of the constitution (which relates to the creation of Delhi state through its 69th amendment) Delhi continues to be a Union Territory. One can only wonder whether the learned judges fully understood the implication of their choice of words, for continues means remains what it was before the passage of the 69th amendment!
But Article 239 AA was an addition to Article 239, which was enacted to provide an elected government to Puducherry. Even a cursory reading shows that its entire purpose was to extend democracy to small pockets of the country that for historical or strategic reasons had been denied this privilege. So if this judgment is allowed to stand it will erase the distinction between a union territory that is directly administered by the central government , such as the Andaman and Nicobar islands and Ladakh, and one that has a government elected by the people of the territory, such as Puducherry, or Delhi.
Article 239 was therefore designed to limit the powers that a Lieutenant Governor enjoyed in the original version of a Union Territory. And the chief limitation was that the LG had to act upon the “aid and advice of his council of ministers”, i.e of the elected government.
What is more, the words aid and advise are not meant to be taken literally. They are lifted directly from the constitutional practice of Britain, where they reflect the gradual transfer of absolute power from the monarch to parliament in the 18th century and have been included in the Indian constitution as well.
In Britain the last monarch who rejected the advice of parliament was King George III in the late 18th century. The last time a British monarch was advised to defy the will of parliament, but refused to do so was when, in a conflict very similar to the one between AAP and the Modi government today, a group of Peers of the realm advised King George V to reject any advice to call Ramsay MacDonald, the leader of the labour party to form its first government in 1923.
In India the President is also aided and advised by his council of ministers but enjoys only the power, implicit also in British parliamentary practice, to send the bill back once for reconsideration.
If the spirit of the Constitution and of democracy are respected, the Lt Governor of Delhi, or Puducherry should only have the power to refer disagreements between him and the chief minister to the President, as the 69th amendment permits him to do. Maybe that is what Governor Jung did initially. And maybe the central government is using him as a shield from behind which to destroy the AAP government. But if that is so, then Jung should never have lent himself to this ignoble purpose. For whichever way one looks at it, what is happening is a murder of democracy to which the Delhi high court has now unwittingly become a party.