In his little book On Tyranny: Twenty Lessons from the Twentieth Century, one of the lessons cited by Timothy Snyder is “defend institutions”. He gives a disarmingly simple reason for it – institutions “help us to preserve decency”. There’s a reason he chooses a normative rather than an institutional purpose. In a democracy, institutions function within a culture of politics. The same institutional architecture can allow a democracy to function substantively or minimally and nominally. For institutions to function maximally so as to expand the substantive content of democracy, they need to be supported by a democratic political culture. In its absence, the parliamentary system may endure, but a political culture that is decent will not.
The case in point is the central government ordinance that seeks to override the Supreme Court judgment that restores to the Delhi government legislative and executive powers over “services”. Unhappy with the decision, the Centre also filed a review petition on May 20. It may be argued that in a parliamentary democracy, the Union government has the power and the institutional capacity to neutralise a Supreme Court ruling. Question is, is it right and decent to do so?
What the Supreme Court rules is not gospel truth. Its rulings are always open to criticism, disagreement and review. The point is not to “obey” the Supreme Court but to weigh the reasoning it deploys in any judgment – in this case, the judgment being one that confirms the Delhi government’s legislative and executive control over administrative services, barring those related to public order, police and land. The ruling places three constitutional principles – representative democracy, federalism and accountability – to an elected government within the interpretation of Article 239AA. However, since Article 239AA is far from clear in its implications and jurisdictions, there is one other aspect that bears consideration – the intention and the jurisprudence behind the amendment that changed Delhi’s status from a Union territory to that of a (quasi-)state.
Delhi has a peculiar federal architecture. It is more than a Union territory (unlike what the Centre’s review petition alleges) but less than a full state. Article 239 of the 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 Constitution provides for an elected government with legislative and co-extensive executive powers.
But Delhi is also a lesser state in comparison with other states. Article 239AA was added by the amendment to include “special provisions” with respect to Delhi. According to 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 for these three areas, the language used in Article 239AA(4), which pertains to Delhi, reads identical to Article 163 (1), which 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 advise” 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 case (1974).
How do we then assess the review petition of the central government that argues that despite the insertion of Article 239AA in the Constitution, the NCT of Delhi is not elevated to the status of a state, that it remains a UT, and that, therefore services fall within the purview of the Union government?
A straightforward reading of 239AA(4) leaves little doubt that matters relating to “services” (appointments and transfers of bureaucrats, for instance) is a prerogative of the state government and must be done with 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 pertains to “state public services” that are drawn from the 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 20, 2023 review petition in the Supreme Court and an earlier May 2015 notification of the Ministry of Home Affairs are two such assertions. The MHA notification states that along with law and order, land and police, services also are outside of the jurisdiction of Delhi state. The Centre’s review petition argues that despite the insertion of Article 239AA in the Constitution, the NCT of Delhi is not elevated to the status of a state and remains a Union territory and that there is no category of distribution of legislative power with respect to the legislative assemblies of Union territories.
There are two ways to see these moves by the Union government. One would be to ask a simple rule-book question: Can the Union government do such a thing? Can it pull rank in this mess of federal anomalies and drafting ambiguities? The Delhi high court (August 4, 2016) seemed to think it could, the Supreme Court (May 11, 2023) seems to think it can’t.
A principle often followed in matters of constitutional logjams is “intentionality”, where constitutional prudence and intention of the lawmakers assumes importance to resolve an impasse. The questions to ask would be: did the 69th amendment bill, which 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 listing of entry 41 of the state list?
Court verdicts should be based on an analysis of how a law is structured and how laws 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 jurisprudential wisdom 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 control services against observed conventions of a federal structure which forms the basic structure of 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 an elected head and not of nominal heads like presidents, governors and lieutenant governors. 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 power rotate in a “decent democracy”. What is right, therefore, cannot only be a matter of what the rule is when a rule is two-pronged. 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 is a professor of political science at Janki Devi Memorial College, Delhi University.