SC judgment on Delhi: Defer the grandstanding

The Supreme Court’s judgment in the Government of National Capital Territory of Delhi (GNCTD) vs Union of India must be examined in the light of the constitutional provisions under interpretation, shorn of the politics that surrounds the case. Governments come and go but the Constitution and the capital city are here to stay. Any interpretation of the Constitution must transcend the trials of time.

The Court was called upon to interpret Article 239AA of the Constitution, which confers a special status on the National Capital Territory of Delhi (NCTD). The territory of India is divided into States and Union Territories (UTs), and UTs are, quite literally, ‘territories of the Union’. The Constitution devotes a special chapter to UTs, and the 69th Amendment to the Constitution, which introduced Article 239AA, places the NCTD in the most special class among them.

The reasons are obvious: Delhi is the capital city and the seat of the central government. All Indians have a stake in the capital and residents of the NCTD can claim no monopoly over it. In fact, to equate Delhi with any other state in the country and confer on it ‘statehood’ would diminish its status. The Supreme Court ruled out statehood for Delhi, holding that it was “clear as noon day” that the constitutional scheme did not contemplate the status of a state for the NCTD.

The power of the LG stems from a provision applicable to all UTs. Article 239(1) provides that “every Union Territory shall be administered by the President acting… through an administrator”. This provision is incorporated into Article 239AA, special to NCTD, where the ‘administrator’ is the LG. It is obvious that in the capital city, the tilt towards the Centre can be only more, not less, than in other UTs.

The court concluded that the Lieutenant Governor (LG) is not a titular head, but rather, an ‘administrator’ as distinct from the Governor of a State. But in the hybrid constitutional scheme for the NCTD, involving two executives, the Court held that the LG must act in accordance with the aid and advice of the Council of Ministers.

Having said that, the ‘aid and advice’ contemplated in this scheme is different from the ’aid and advice’ that binds the Governor of a state. This is because the LG is conferred with the special power to refer matters to the President when he has a ‘difference of opinion’ with the Council of Ministers.

In an urgent situation, the LG may take immediate action, pending the President’s decision. The Court held that this power should be used sparingly, narrowing it to matters involving national interest. But the recognition of this power in matters that transcend the select subjects over which Parliament has the exclusive legislative prerogative, (public order, police, and land) necessarily means that the LG must independently apply his mind to all decisions of the Council of Ministers.

Had he been required to act as a rubber stamp, in no case could there be a ‘difference of opinion’, as expressly contemplated under the Constitution. Doubtless, such differences cannot be a routine affair and must be over matters worthy of the President’s intervention.

A clue as to where executive power eventually vests is a comparison between Article 356 and Article 239AB. When there is a breakdown of constitutional machinery in a state, the President ‘assumes’ power, while in the NCTD, the President merely suspends Article 239AA. He does not ‘assume’ power, because it vests in him.

There is some haze over what sort of matters warrant a reference to the President. It is only when the court gets down to the practical task of testing individual cases of ‘difference of opinion’ will we really know the lay of the land.

In practice, that might be more complex than anticipated because in a capital city even matters that appear routine may acquire a ‘national’ dimension only because the situs is the capital city.

The grandstanding over the outcome of the case ought to be deferred until that exercise is concluded.

Madhavi Goradia Divan is an advocate and was part of the team that represented the central government

The views expressed are personal