Democratic regression is incrementally visible in the presence of an absolutely centralising government. We are witness to increasing intolerance to dissent by the powers that be. This is a dangerous phenomenon in a democracy, but an even greater threat looms on the federal front, because written constitutions do not operate, or, function on their own.
A parliamentary democracy based on a federal structure was India’s need of the hour due to the compulsions of geography as well as the need for political and cultural unity of what was left of British India. However, recent trends, starting with the demolition of the Part A State of Jammu and Kashmir, show an increasing tendency to silence the dissent of the states to consolidate central power.
This essay highlights the growing trend to weaken the democratic federalism enshrined in the Constitution in the phrase “India that is Bharat is a Union of States”. The abolition of the statehood of Jammu and Kashmir along with its constitution was the first serious attack on the federal structure. This was followed by the Centre blatantly attempting to override the grab of state market laws, which are very much within the State field. Now we have the NCT of Delhi (Amendment) Bill, 2021.
To correctly appreciate the implications of the NCT Bill, bear in mind some salient but “basic features” of our federal parliamentary democracy as the framers of the Constitution designed it. Foremost in this scheme is a democratic government, one that is responsible to the electorate as against the autocracy of the unelected.
The government is not only “collectively responsible” to the peoples’ legislature but also directly responsible to the people, who are the sovereign. It implies a system of governance where the people, through their directly-elected representatives in the legislatures, subject the government to constant audit in the House or its committees of elected representatives.
Additionally, the sovereign people themselves undertake the audit of the government periodically when the “little man” expresses his approval or disapproval of governance.
In other words, “collective responsibility” implies “representative government”. The government not only represents the sovereign people but is also constantly answerable to the people. The federal structure also embodies the same principle at two levels if we keep in mind the “party system” that was implicitly adopted.
Representative governance is a device to fulfill the popular will by representing it into policies. The government, which derives its powers from the consent of the people, should always ensure that the people rule in light of the Constitution which they gave to themselves.
Not to forget the “aid and advise” principle that furnishes the last-mile connectivity to the sovereign with their governance. It implies that the executive exercise of power by the Council of Ministers, who represent the people.
The phrase “aid and advise” can be appropriately defined as the lynchpin without which an autocracy of the unelected cannot be checked, controlled, or neutralised. It embodies the definitive character and content, where the advice is binding in governance.
These are the basic principles on which our parliamentary democracy is based. Shift out any of these specialised deep-rooted features and our democracy would collapse squandering away our struggle for independence.
The Union Territory of Delhi was earlier regulated by Article 239. It was administered by the President directly or through an Administrator appointed by him. The laws for the Union Territories were to be exclusively made by the Parliament under Article 246(4) on all subjects.
Thus, the Sovereign—people—in Delhi had no autonomy or say in their governance. Then came Article 239A in 1962, which promised a measure of responsible legislature and governance, but excluded Delhi. However, under Article 239A, meant for other Union Territories, limited democracy was a gift conferred by Parliament, which means the Centre.
Nine years later, the Sovereign people of Delhi were constitutionally given democratic autonomy, both legislative and executive. Parliament, acting as a permanent Constituent Assembly, enacted Article 239AA to give expression to the sovereignty of “we the people”.
Though the claim of statehood was denied, yet a political system was conjured up wherein all the principles of a federal democracy were given effect. The people of Delhi were conferred sovereignty by the Constitution itself, doing away with the fickleness of the choice of Parliament.
A bare comparison of Article 239A meant for other Union Territories and Article 239AA, meant exclusively for Delhi, would bring out the differences in the constitutional status of Delhi. Article 239AA ensures the application of all the basic tenets and salient features of parliamentary democracy in our federal structure, including the last mile connectivity of “aid and advice” between the people and their governance.
A representative democracy with “collective responsibility” towards the directly-elected legislature was ensured by the Constitution itself. Even the legislative field of the States, with a few exceptions, was preserved to the Legislature of the National Capital Territory, which put it out of the reach of Parliament.
The idea behind this transformative change was to have a “representative government” akin to that in Chapter III of the Constitution meant for the States, which even Parliament could not juggle with.
Two key aspects of Article 239AA
- Parliament was to have concurrent legislative power with the Legislative Assembly of the NCT under Article 239AA(3)(b); and in the event of conflict it could override the Legislative Assembly.
- In the matter of exercise of executive power, despite the limitation of “aid and advice,” the Lieutenant-Governor could hold a different opinion “on any matter”. He could refer the matter to the President if it proved intractable. [Proviso to Article 239AA(4)]
The Constitution, therefore, does not give complete exclusivity to the NCT in the legislative or executive fields. Despite these omissions, the Supreme Court, in its 2018 Constitution Bench judgment, relied upon the following important aspects:
- To keep in mind the objective of the transformative change effected by Article 239AA. It, obviously, was to confer sovereignty on the people, with all the trappings of parliamentary democracy which even Parliament could not trample.
- To bear in mind the federal structure which was introduced in the NCT, both in the exercise of legislative and executive powers. This implies autonomy to both, the legislature and the executive and permanence to them in dealing with local issues.
- A government constituted with the consent of the people should ensure that the sovereignty of the people is preserved. In other words, the unhindered effort should be to preserve the representative democratic character of the Constitution (Article 239AA) and responsible governance.
- The interpretation of Article 239AA was contextual and harmonious, where each part coalesces with the other without making it redundant.
Keeping these principles in mind, the Supreme Court resolved the above conundrum by answering the following question:
The question is whether the amendment incorporating Article 239AA with its sweeping changes has brought about a meaningful transformation or the people of NCT remain where they were, in terms of life and participation of the collective, in their governance.
The court held that the transformation affected has to be viewed in the context of the democratic structure and the decentralisation of powers introduced. It was a deliberate change to introduce representative governance to fulfill the popular will in governance.
This is what is called a purposive, not literal, interpretation. Any construction of a constitutional provision that conflicts with the purpose of the Constitution or negates an avowed object has to be eschewed. This is what we call “constitutional morality”.
Supreme Court on distinctive features of Art 239 AA
- The introduction of representative democracy with emphasis on the “collective responsibility” and the “aid and advise” principles, was only to restore the sovereignty of the people so that they may rule on local issues. This resulted in a reduction of the autocracy and control of the unelected, as well as the Center.
- Placing the legislative field in the State list—on the directly elected Legislative Assembly of the NCT—symbolises the federal principle where the local issues are to be decided locally.
- If any external authority prevents a collective decision from being taken or given effect to, then the concept of the collective responsibility in a federal structure gets denuded. Likewise, democratic governance through representative democracy also gets eroded. Such erosion of the democratic structure necessarily leads to the supervening control of the Centre through the autocracy of the “unelected” Lieutenant-Governor. Therefore, any political action that causes such a consequence is not only undemocratic but is equally in conflict with constitutional morality, which, the court said, is a concept based on strict adherence not only to the specific provisions but also to the “spirit” of the Constitution.
Keeping these aspects in mind, one has to assess Article 239 AA(3) and 239AA(4) in a purposive manner. The Supreme Court observes that both the above provisions are to be assessed harmoniously bearing in mind that democracy and its essential characteristics, fused with the federal structure, are basic features.
The Centre has to be seen as preserving federal democracy as a constitutional value while both the Centre as well as the Units have to act in tandem. The proviso to clause 4 cannot be allowed to negate the main clause.
The focus of the present dispute turns on the scope of Article 239 AA(4) (the proviso) which enables the Lieutenant-Governor to differ with the popular government “on any matter” under which it is to be referred to the Centre via the President.
If the contextual harmonious interpretation is adopted, the proviso cannot be said to give a carte blanche to the Lieutenant-Governor. Instead, this power to differ from the peoples’ government has to be seen in the light of all the democratic principles enshrined in Article 239 AA.
The power to differ cannot be used to negate the whole objective of the main clause (clause 4), which gives a primary say in governance to the Council of Ministers who represent the people.
The proviso is only a check on the executive powers of the NCT so that it adheres to the Constitution and does not abuse its powers. Thus, the power to differ is seriously circumscribed. The Lieutenant-Governor is bound by the “aid and advise” embedded in the Constitution.
This provision ensures a Cabinet form of government where executive power is vested in the government of the NCT and not in the Centre in respect of matters on the State list.
‘Constitutional spirit and morality’
To directly or indirectly confer any overriding power to the Centre is against the “constitutional spirit and morality”. It would destroy collaborative federalism and the people’s sovereignty, which are now gifts of the Constitution and not of Parliament. This is the basic difference from the other Union Territories.
The phrase “on any matter”, if seen contextually, does not mean “every”. The power of the Lieutenant-Governor is an exception and not in general terms. The Lieutenant-Governor has to be wary of the constitutional principles and not act mechanically. He has to be guided by constitutional morality and can only act on valid grounds to protect the interest of the NCT.
He should honour representative democracy where the voice of the people does not go unrecognised.
Though the Lieutenant-Governor has to be kept in the loop so that he may make informed decisions. He cannot throttle the voice of the people. The executive powers of the NCT cannot be indirectly shifted to the Centre but must remain with the people. Overriding powers cannot be gifted to the Centre or the unelected on local issues.
Four major changes in Amendment Act of 2021
1. The expression “government” in any law made by the legislature of NCT would mean the Lieutenant-Governor. This is not entirely objectionable if we bear in mind the principles of Chapter III which pertain to States. The government there is referred to as “Governor” because all the executive power vests in him to be exercised on the binding “aid and advise” of the Council of Ministers. This amendment by itself is innocuous except that it is a pointer to the worse to come.
2. The second change is a crude attempt to curtail the legislative power of the Legislature of the NCT. We have to lift the veil to see the reality. In a federal structure, where the power is conferred on the peoples’ legislature to legislate on a particular subject, then any incidental encroachment on the legislative field of the other legislature to fulfill its objective effectively, is constitutionally permissible.
This incidental power is implicit. What is seen is whether the law enacted “in pith and substance” falls within the allocated field. Incidental encroachment is supplemental, in the absence of which law-making would become impossible.
This principle has been devised to resolve the conflict of laws in a federal system where legislative power is shared. This is an essential part of the federal structure and gives effect to it. However, the second amendment seriously curtails the legislative power of the NCT and breaches the federal principles enshrined in Article 239AA.
It also betrays the spirit of transformation recognised by the Supreme Court and tends to dilute it. What is implicitly conferred by the Constitution cannot be denied by the Parliament by law. Parliament can only supercede the law enacted by the NCT legislature at the most since it possesses concurrent power.
3. The third amendment is another crude attempt to stifle the voice of the people in their governance. This amendment prohibits the legislature of the NCT to seriously audit the matters of daily administration of the NCT, or, make requisite inquiries.
This restriction may even apply to matters of the State list. It is undoubtedly a matter of grave concern as it substantially does away with the principle of “collective responsibility” to the legislature and the people of NCT.
Gross constitutional immorality has been committed by the Parliament to aid the Centre or its unelected Lieutenant-Governor. The enabling power of the legislature to critically analyse the daily administration is an essential feature of representative democracy introduced by Article 239AA. This is a blatant example of the Centre attempting to regain much of the lost ground due to the judgment of the Supreme Court.
4. When the above amendment is assessed along with the fourth amendment in the 2021 Act, alarm bells begin to ring. It requires the government of NCT to obtain “prior opinion” of the Lieutenant-Governor as per clause 4 of Article 239 AA, where the Lieutenant-Governor is enabled to differ with the government.
This has consequences. As per the judgment, an “opinion” cannot be understood as concurrence. It can at best be to ensure that the Lieutenant-Governor is kept informed so that he or she may form an opinion under clause 4.
No law was needed for this limited purpose as the Supreme Court’s directions already give it effect. It is certainly a back-handed attempt to control the executive and legislative powers of the NCT and reinforce the requirement of clause 4 relating to referring the matter to the President (read Centre) and thereafter to enable the Lieutenant-Governor to exercise full powers. Every legislature has the power to regulate its procedure but this power is now being curtailed to suit the Lieutenant-Governor.
These amendments are a retrograde and crude attempt to negate the gains of NCT both under the transformative Article 239 AA, as well as the Supreme Court Judgment on it. It seems the Centre instead of honoring the judgment is hell-bent on dishonoring it. The consequence is not only taking away the sovereignty of the people but also receding representative democracy in the federal structure.
The author is a senior lawyer at the Supreme Court. The views are personal.