GNCT Delhi v. Union of India: An analysis of Dharna and Drama

[Editorial Note: The author issues a public apology for using footnotes in this blog-post as opposed to hyperlinks. This blog-post was written during lockdown 2020, which means before the recent controversial GNCTD (Amendment) Bill, 2021 was under consideration. This blog-post provides a background to the bill as the author analyses the judgment of the Hon’ble Supreme Court which will diluted if this Bill will be passed by the Parliament.]

During the year 2017-18, the people of Delhi were wretched due to ‘policy paralysis’ as there was a tussle between the Delhi Government and Lieutenant Governor of Delhi (hereinafter referred to as LG). There was dharna on one side and drama on the other; that’s how the constitutionally established political system of Delhi was ‘oozing venom’ on each other. The scuffle between the two constitutional authorities raised several legal and constitutional issues on the scope of their respective powers and limitations in the National Capital Territory of Delhi. In this blog-post, the decision of the Hon’ble Supreme Court in the case of Government of NCT of Delhi v. Union of India & Another (hereinafter referred to as the Delhi case), which answered the several questions of law with regard to Delhi, will be analysed and significance of the same would be foregrounded.

Issues

The Delhi case has its own convolution as the main issue in the case was the interpretation of Article 239AA of the Constitution which is a special provision with respect to the National Capital Territory of Delhi. The “centripodal” conundrum was with regard to the administrative powers of the LG, as to whether- (a) he is controlled by the phrase ‘aid and advise’ of the Council of Ministers (hereinafter referred to as ‘COM’) [or]; (b) his power as the administrator of NCT of Delhi remains untouched by the 69th constitutional amendment. Does the constitutional amendment give special status to NCT of Delhi among the Union Territories? Should LG be informed about every decision taken by the COM? Can the LG refer ‘every (or any) matter’ under proviso Article 239AA (4) to the President? What must be the guiding principles when there is difference of opinion between the LG and the COM? These are the few issues which were addressed by the Hon’ble Supreme Court.

The Judgment

Article 239AA of the Constitution confers special status to the NCT of Delhi. It is distinguished from Article 239 and Article 239A as the purpose of inserting this Article was to confer special status to Delhi. The batch of petitions filed before the Supreme Court sought for the judicial interpretation of mainly two clauses, that is, [i] Article 239AA (3)(a) and (b) – which states that the Legislative assembly of Delhi is empowered to make laws with respect to whole or any part of NCT of Delhi with respect to matters enumerated under List II[1] or III and the Parliament, too, will have the power to laws with respect to all the matters and; [ii] Article 239AA (4) and its proviso – which states that there shall be COMs[2] with the Chief Minister at its head to ‘aid and advise’ the LG and if there is a difference of opinion between the two, then the LG can refer the matter to the President for a decision. The judgment aims to resolve any disharmony and anarchy by making the parties realize the feeling of ‘constitutional renaissance’[3]. The purposive interpretation must be adopted to interpret Article 239AA so that the basic structure of the Constitution (i.e., Democracy and Federalism) is augmented in NCT of Delhi which will further reinforce the confidence placed by the people of Delhi in the elected-government.

  • Status of NCT of Delhi

The NCT of Delhi is neither a state nor ‘just’ a union territory, but under the constitutional scheme Delhi and other union territories are not on same pedestal.[4] Its status is unique. By the insertion of Articles 239AA and 239AB, it could be understood that the status of NCT of Delhi is sui generis and it is a class by itself. By the introduction of Westminster style cabinet system of government, the residents of Delhi have a “larger say in how Delhi is to be governed”.

  • Executive powers of COM

The conjoint reading of Article 239AA (3)(a) and Article 239AA (4) reveals that the executive power of the NCTD is coextensive with the legislative power of the NCTD which extends to all the matters in state list (except three matters) and concurrent list. Therefore, the executive power of the COM is coextensive with the legislative powers of the Assembly, so that various policies decisions are implemented smoothly. Further, the executive power of the Union government does not extend to the executive powers of the NCTD, hence, it does not have any say in the policy decision of Delhi’s COM. Only legislative power of the Parliament is conterminous to legislative power of Delhi which basically means that “nothing shall derogate the powers of Parliament to make laws with respect to any matter for the Union Territory of Delhi”[5].

  • Is LG is bound by ‘aid and advise’ of COM?

Under Article 239AA(4), it is stipulated that Delhi now has a Westminster Style cabinet system of government where there ‘shall’ be COM who are responsible to the Legislative Assembly and the COM headed by the Chief Minister shall ‘aid and advise’ the LG. Therefore, the LG is bound by the aid and advise of the COM, as per Article 239AA (4) of the Constitution, only in the matters in which legislative powers has been conferred upon the Assembly (except in the matters where he has been entrusted to act in his discretion). To support this argument, the bench emphasized on section 42 of the 1991 Act which is identical to the clause (2) of the Article 74[6] which is also a manifestation that the words ‘aid and advise’ must be uniformly interpreted. Section 42 states that:

42. Advise by Ministers. The question whether any, and if so what, advise was tendered by Ministers to the Lieutenant Governor shall not be inquired into in any court.

Just like the aid and advise of the Union’s COM is binding on to the President, in the same way the ‘aid and advise’ of the COM of NCT of Delhi must be binding on the LG.

[On a similar note, the COMs are just required to “communicate and inform its various proposals, agendas and decisions to the LG so as to keep the LG apprised and to enable him to scrutinize the same”[7] but there is no need for a prior concurrence of the LG as it will dilute the idea of representative governance and democracy as conceived for Delhi under Article 239AA.]

However, this is subject to the proviso of Article 239AA (4) which confers upon LG the power to refer “any” matter to the President for a ‘binding decisions’, when there is a difference of opinion between LG and COM. “This proviso to clause (4) has retained the powers for the Union/ LG even over matters falling within the legislative domain of the Delhi Assembly”[8], based upon the ‘thoughtful interpretation’ of the LG. But does LG have the power to refer “every” matter to the President? This would be answered in the forthcoming section of this chapter.

  • Can the LG refer “every” matter to the President?

Although the LG is not a titular head of Delhi as rather, he has the power to exercise discretion in certain matters, unlike the President and the Governor. But the LG’s discretionary power is limited to only three matters over which the Assembly does not have any legislative powers, meaning thereby, if the COM makes any policy with regard to any matter which is outside their jurisdiction then the LG would be well within his powers to reject the policy or refer it to the President. Coming to proviso of Article 239AA (4), the term “any” cannot be construed neither broadly, to include every matter, nor narrowly, as argued by the petitioners, rather it must be interpreted in a way where the phrase is workable and the constitutional balance is maintained. The word ‘any’ is unlikely to mean anything under the sun and it must have a limitation on it which must be determined by the context in which it is used.[9] The Court held that the word used in the proviso cannot be construed as ‘every matter’ and it must be interpreted in a manner so as to ‘deduce the real intention of the Parliament’ and the purpose for/in which the word has been used. The Court went further to hold that the rule under the proviso is an exception and not the general norm (Paragraph 233). The LG must act with constitutional objectivity and must be guided by constitutional morality as ‘constitutional trust’ has been reposed in his office. The LG must not refer every matter to the President (‘in mechanical or routine manner’) as it would fail the idea of representative governance and democracy and it must not be taken as if the LG has a “right to differ” from the COMs.

Furthermore, the COM must adhere to the 1991 Act and the rules made therein, hence, the LG ‘must be apprised with every decision taken by the COM’ (Paragraph 233). The LG can differ from the decision of the COMs but, first, the efforts must be made to resolve the conflicts. In case of a difference between the LG and a particular minister, the matter must be referred to the Council; then, if the difference persists, then the matter must be referred to the President. (Here the reference must be made to Rule 49[10] and Rule 50[11] of The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993)

CJI Misra demonstrated the role of the LG and COM as (Paragraph 236):

There should   not   be   exposition   of   the   phenomenon   of   an obstructionist but reflection of the philosophy of affirmative constructionism and a visionary. The constitutional amendment does not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State.”

Therefore, before making any reference to the President under the proviso, the 1993 Rules must be followed and there must be dialogue and discussions between the COM and LG to resolve the differences. In the words of Justice D Y Chandrachud, “a reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President” (page 411, Paragraph M (19)). Henceforth, the LG must not have a hostile attitude towards COMs and Chief Minister, rather he should act as a facilitator, “keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional   balance, the concept of constitutional governance and objectivity and  the nurtured and cultivated idea of respect for a representative government” (page 232, Paragraph xviii).

Significance of the Judgment

In Delhi’s case, the Supreme Court declined to lay down an ‘exhaustive’ list where the LG may choose to refer the matter to the President. Rather Justice Chandrachud’s concurring opinion laid down a broader rubric of “national concerns”, where the reference to the President can be made, which is not addressed by the majority judgment. This simply means that LG can refer the matter when the Delhi government touch upon the ‘legitimate interest’ of the Union Government (as it is physically based in Delhi). One example: opening of Mohalla Clinics (by Delhi Government) will not come under “national concerns”, and therefore it is not in the scope of proviso.

With regard to Article 239AA (4) proviso, there is no specificity in the majority judgment as to what could be referred to the President. This could be “ameliorated” by Justice Chandrachud’s concurring opinion. Although the disputes between the Delhi Government and Union are purely “political” in nature, but in such cases, constitutional doctrines and principles can help to resolve the disputes.

Even after this judgment, recently during the COVID-19 crisis, the LG (as Chairperson of Delhi Disaster Management Authority) reversed the decision of the Delhi Government, in which the Government reserved the hospital beds for residents of Delhi only. Although the order passed by the Delhi Government was contrary to Article 21 of the Constitution as it threatens the life of the individuals who are not residents of Delhi, but still ‘reversing’ of the decision of the Delhi Government is contrary to the Delhi’s case and the principles laid down therein. The LG can disagree and refer the matter to the President, but can he just overrule the decision taken by the duly elected government? The new Government of National Capital Territory of Delhi (Amendment) Bill, 2021 makes it possible. Will it held unconstitutional by the apex court? The question remains.



[1] Article 239AA (3)(a)- “The legislative assembly shall have power to make laws…… with respect to state list or concurrent in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State list and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2, and 18.”

[2] COMs to be not more than ten percent of the total number of members in the Delhi Legislative Assembly.

[3] By Constitutional renaissance, CJI Misra meant, “true blossoming of the constitutional ideals, realization and acceptance of constitutional responsibility within the boundaries of expression and silences and sincerely accepting the summon to be obeisant to the constitutional conscience with a sense of reawakening to the constitutional vision” (The Delhi Case at pp. 220-221, Paragraph 275)

[4] New Delhi Municipal Corporation v. State of Punjab, (1997) 7 S.C.C. 339.

[5] Article 239AA(3)(b)

[6] Article 74, Clause 2: “The question whether any, and if so what, advise was tendered by Ministers to the President shall not be inquired into in any court”.

[7] As per, The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, which are framed by the President in exercise of the power conferred upon him under Section 44 of the Government of National Capital Territory of Delhi Act, 1991.

[8] The Delhi Case at pp.161-162, Paragraph 195.

[9] J.L. Austin, How to do Things with Words, The William James Lectures delivered at Harvard University, 1955.

[10]  Rule 49 of T.B.G.N.C.T.D Rules, 1993: In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion   on   the   matter   to   settle   any   point   on which such difference of opinion has arisen. Should the   difference   of   opinion   persist, the   Lieutenant Governor may direct that the matter be referred to the Council.

[11] Rule 49 of T.B.G.N.C.T.D Rules, 1993: In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the   Central   Government   for   the   decision   of   the President and shall act according to the decision of the President.

Understanding the Right to Privacy: The Puttaswamy Judgment-I

In 2017, the 9 judges of the Indian Supreme Court adjudicated a matter Puttaswamy v. Union of India (‘Puttaswamy’) and unanimously held that under the Indian Constitution, the Right to Privacy is a fundamental right. The Supreme Court declared that its previous judgments in MP Sharma (8 judges) and Kharak Singh (6 judges) are overruled as they did not recognise privacy as a fundamental right. Those judgments relied on the logic used in the A.K. Gopalan case which stated that every fundamental right to be read separately and individually. But that position got changed in R.C. Cooper v. Union of India, and subsequently in Maneka Gandhi v. Union of India, in which the Court held that fundamental rights cannot be read in water-tight compartments. In Cooper, the Court said that the fundamental rights ‘do not attempt to enunciate distinct rights’, rather they are interlinked. Hence, this article must be read in light of the principle enunciated in the Cooper case. In this article, I will try to highlight the reasoning behind Puttaswamy as to why the Court declared Right to Privacy as a fundamental right.

Understanding Right to Life and Dignity

Every human being by the virtue of her existence has a Right to Life which is a natural right guaranteed by the ‘Nature’. Further, this natural right to life is also guaranteed by the Indian Constitution under Article 21 which elucidates that the ‘state’ shall not violate any person’s right to life and personal liberty without the procedure established by law. The Right to life is not just the right of a person’s physical body, but also over her mental being. In Golaknath case, Justice Rao observed that ‘Fundamental Rights are the modern name for what has been traditionally known as Natural Rights’ [The usage of the word ‘natural’ here is opposed to the societal opinion/understanding of the rights ‘as they are since time immemorial’, rather it is based on the transformative nature of rights which are always evolving]. These rights, including the right to life, cannot be excluded or separated from human existence. Hence, the rights guaranteed under Part III of the Constitution are the natural rights of every human being, which it aims to preserve.

Dignity, as an expression, finds its place in the Preamble of the Constitution as it states that ‘ensuring the dignity of every individual’. An individual is the focal point of the Constitution and human dignity weaves through the provisions of the Constitution. [Article 14: Guarantee against arbitrariness; Article 19: Individual Freedoms; Article 21: Life and personal liberty] The Court in the Francis Mullin case strongly observed that the fundamental rights must be interpreted to enhance the human dignity and ‘worth of the human person’. The Right to Life is not just animal existence and it is much more than just mere survival. On human dignity, the five-judges bench in M. Nagraj exposits that, “no exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. Every human being has dignity by virtue of his existence.” Further, observing about dignity, it has been observed in Selvi’s Case that forcible intrusion into a person’s mental processes is also a violation of Human Dignity.

Privacy and Human Dignity

Ancient philosophers such as Aristotle distinguishes private life from public life. He distinguishes the spheres where the government can intervene and where it cannot; certainly as he observes that government cannot intervene in an individual’s privacy.  Individual’s private life is mainly for “private reflection, familial relations and self-determination” (refer to the constitutional database to read the hyperlinked article). The individual is sovereign over her mind and body. As Justice Chandrachud posits (Puttaswamy ¶32),

“If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena.”

An individual has all the freedom and liberty over his body and mind and she must be set free from any kind of intrusion. Privacy, as a right, is important for an individual to exercise control over his or her personality. ‘Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion.’ (Puttaswamy ¶113) Life without dignity, privacy and liberty is no life as they are inalienable to a human being. No state can violate these rights as they exist even before the advent of the Constitution. The constitution is ‘not the sole repository of the right to life.’ India has signed and ratified UDHR and its Article 12 recognises the Right to Privacy which cannot be taken away by anyone.

 Further, the argument that the right to privacy is not available under the text of the Constitution is based on a primitive understanding of it. The Constitution is a transformative text which evolves over time and it cannot be viewed as a document ‘written in ink to replace one legal regime with another’. It is a document which rests on the goals enshrined in the Preamble and the aim is to realise those goals. The Constitution does not tells us what is a right or do we have a right or not? It only puts the limitations on the power of the state. It is not the source of liberty of man as liberty exists by the mere virtue of existence in the world.

Therefore, the right to privacy is a part of the liberty of an individual and privacy protects the individual’s autonomy and dignity. The ‘pursuit of happiness’ which everyone seeks is founded upon liberty and dignity of an individual. ‘Both are essential attributes of privacy which makes no distinction between the birthmarks of an individual.’ The guarantee of the right to privacy liberates the individual and helps her in realising her potential and autonomy.

In conclusion, while embracing the Supreme Court’s judgment in Puttaswamy v. Union of India, a paragraph from Max Planck Encyclopaedia of Comparative Constitutional Law (2015) is something to look forward to:

“The right to privacy can be both negatively and positively defined. The negative right to privacy entails the individuals are protected from unwanted intrusion by both the state and private actors into their private life, especially features that define their personal identity such as sexuality, religion and political affiliation, i.e., the inner core of a person’s private life….. The positive right to privacy entails an obligation of states to remove obstacles for an autonomous shaping of individual identities.”

[Note: There are certain reservations about the Court’s judgment with regard to ‘declaring Privacy as a Natural Right and not merely a Fundamental Right’. This has been argued here and here]

Right to Protest, Restrictions and Democracy: Supreme Court and the Chilling Effect

Recently in the case of Amit Sahni v. Union of India, the Supreme Court passed a judgment on an infructuous matter which will have a long-lasting effect on civil liberties, especially the right to protest. The judgment of the Court feels like a judgment written by the central government in furtherance of an ‘executive court’. The 3-judges bench creates a chilling effect on the free speech and expression and the right to assemble peaceably (without arms).

The matter relates to the protests being held that Shaheen Bagh (New Delhi) and it was filed in February 2020. The protestors at Shaheen Bagh were dispersed in March after the Nation-wide lockdown which, ‘usually’ lead to dismissal of the matter. The judges ignored the factual matrix present in the case and the reasons for blockade were not because of the protestors, but the administration (police) which blocked the nearby roads and public routes. The Court classifies the constitutional and peaceful protests as “encroachments or obstructions.”

What did the court say?

The Court recognised the right to protest and the right to dissent in a democracy. The Court held that the Articles 19(1) (a) and (b), “in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State.” Then, the Court moves onto the “reasonable restrictions” stated under Article 19(2) and (3). The judgment looks like as if the norm is turned into an exception, and the exception is now the norm. The Court tried to balance the right to protest with the right of other citizens to commute. It must be noted that the balancing is not done by applying the principles of proportionality, but by presuming that the protests ‘always’ disturbed the smooth traffic and commute of the citizens. The Court did not accept the plea that “an indeterminable number of people can assemble whenever they choose to protest.” This creates a chilling effect on the right to protest – the court cannot sit as an executive and lay down policies. Suppose the government plans to make some amendment in the Constitution which infringes the basic structure of the Constitution, then should the citizens sit quietly and just witness the democratic backsliding or come on the streets to express their will? As Gautam Bhatia says “in today’s day, it is important to retrieve and to build constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts.” The check on the executive power must come from the fourth branch of democracy, which is the civil societies, media and the citizens. (See the blog on Executive Aggrandizement and democratic backsliding)

The Right to Assemble Peacefully and the Right to Protest

The rights are guaranteed under clause 1 of Article 19 which are not absolute. The restrictions on those rights placed under clause 2-6 cannot be read widely, but narrowly. They are the exceptions to the rights and must be narrowly tailored. The Supreme Court in the case of Shreya Singhal v. Union of India held that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Further, even in the Constituent Assembly the fears of wider interpretation of ‘reasonable’ restrictions were evident as one of the members Mr Sahaya said:

“In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country.”

The right to assemble peacefully is a fundamental right and an enabling right which leads to opening up of spaces and opportunities for civil societies and citizens at large to engage effectively in decision-making processes. This right help to foster increased transparency and accountability and are basic prerequisites for the ultimate goal of securing substantive enjoyment of different human rights in a constitutional democracy. The right to assemble peacefully is a vehicle which enables other socio-political-economic rights. The state can restrict the said right only by a law in the “interests of the sovereignty and integrity of India or public order”. Fearing the so-called “reasonable restriction”, one of the members of the constituent assembly said (H.J. Khandekar):

“For instance, we are given to believe that we could carry on organised agitation for the welfare of Labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4).”

The Court by giving the state the wider power to designate the area of the protest and the number of people in the protest somehow validates the fears put forth by the Hon’ble member of the Assembly. The Court also says that the protestors, exercising their right to protest, infringes the right to commute of other citizens as protests lead to traffic jams etc. This requires balancing of rights, not just a blanket assumption. According to the Special Rapporteur on the rights to freedom of peaceful assembly and of association (20 March 2019, Geneva), it was recommended that, “The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.” On the choice of place and time, which the Court declined to entertain, the Rapporteur recommends that,

“The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly…… Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.”

If the state is to ‘choose’ the place of protest, then it will infringe the right to protest as the protests are done to create an impact on the decision-making process and are for maximum participation by the citizens. It is done to make citizens aware of the actions and inactions of the state. If the state chooses the place of protest, then it might choose a place far from the central place of attraction where those sitting in the institutions can see. Like it happened in Jaipur where the place of protest chosen by the state government was 9 kilometres away from the earlier site chosen by the protestors. The free flow of traffic should not automatically take precedence over freedom of peaceful assembly. In this regard, the Inter-American Commission on Human Rights has indicated that “the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area”. Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that “in a democratic society, the urban space is not only an area for circulation, but also for participation.”

A protest is done in the larger public interest, it is done to exercise dissent against various policies of the state (and sometimes against the judgments of the Court). Holding a protest outside the city, or where there is no attention will ‘extinct’ the genesis of the protest and will fetch no fruits. The Supreme Court held “it has to be borne in mind that total extinction is not balancing” (see Asha Ranjan v. the State of Bihar (2017) 4 SCC 397).

The difficulties caused to the citizens exercising their ‘right to free movement’ is due to the states’ failure to take adequate and sufficient steps. If the state will take necessary actions to “ensure that such dharnas and demonstrations are held within their bounds [and the traffic is diverted, instead of closing the roads], it would have balanced the rights of protestors as well as the residents.” (Mazdoor Kisan Shakti Sangathan v. Union of India, 2017)

Instead of being a mute spectator, the state and the police authorities should have arranged routes and spaces near Shaheen Bagh for the commuters to exercise their right to ‘free movement’ instead of blaming the protestors for their own insufficiency and inadequacy. The decision of the court to provide a blanket ban on the demonstrations lead to infringement of rights of the citizens and creates a chilling effect. It is the duty of the state to balance the rights of stakeholders and the Court must only adjudicate and protect the rights of every citizen. The purpose of holding protests is that they reach concerned persons for whom these are meant and to exercise the democratic right guaranteed by the Constitution. The decision of the Court is wrong as it will lead to fresh restrictions on the right. To conclude, in the words of TM Krishna, “Unless public spaces are freely available for demonstrations, we will remain a mute democracy.

Keshav Singh’s Case-II: On President’s Reference under Article 143

Previously on this blog, I have discussed the facts of the Keshav Singh’s case here. In this post, I will be discussing the judgment of the Supreme Court in Re Special Reference No. 1 of 1964 (Powers, Privileges and Immunities of State Legislatures) focussing specifically on the Supreme Court’s advisory jurisdiction.

This case came before the Hon’ble Supreme Court after a reference was made by the President under Article 143(1) and the President formulated five questions of law (which will be discussed in the next part of this series) for the opinion of the Court. Article 143(1) authorises the President to refer questions of law or fact to the Supreme Court, which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them. The Supreme Court ‘may’ give an opinion of the same. The language of clause 1 is quite broad and shows that the Supreme Court is not bowed to give an advisory opinion in every reference made to it. The Court ‘may refuse’ to give its advisory opinion for ‘strong, compelling and good reasons’.

But under clause 2 of Article 143, a matter which is excluded from the Supreme Court’s jurisdiction under Article 131 (Original Jurisdiction) may be referred to the Court by the President for opinion and the Court shall, after such hearing as it thinks fit, report to the President [under clause 2, the phraseology used it shall which makes the Court constitutionally obligated to give opinions].

The issue of Article 143 in the Keshav Singh’s Case

In the Keshav Singh’s case, the question of presidential reference arose before the court when Advocate-General of Bihar raised a preliminary objection that “the present reference is invalid under Article 143(1) because the questions referred to this Court are not related to any of the entries in List I and III and as such, they cannot be said to be concerned with any the powers, duties or functions conferred on the President”. The crux of the argument was that the President cannot refer those questions on which she doesn’t have any power, duties or functions whatsoever.

As predictable it was, the Court rejected the arguments and held in paragraph 14:

“The words of Article 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact….such a question is of such a nature or of such public importance”

The words used in clause 1 of Article 143 are of wide amplitude, hence they could not be interpreted narrowly as suggested by the AG of Bihar. The requirement of Article 143 is (a) satisfaction of the President that a question of law or fact has arisen or likely to arise; (b) she must be satisfied that the question if of public importance that it is expedient to obtain the opinion of the Court. If these two conditions are fulfilled, then the questions may be referred to the Court. In the present case, it is apparent that the reference made by the President is of utmost public and constitutional importance.

It is open for the president to formulate questions in regard to (a) validity of provisions proposed to be included in the Bills which would come before the legislature; (b) questions of constitutional importance. This issue, whether the Supreme Court is bound to answer to the reference under Article 143(1), was raised on the floor of the Constituent Assembly by Shri H.V. Kamath when article 119 of the draft constitution which corresponds to article 143 of the present Constitution came up for consideration. Shri Kamath while moving Amendment No. 1952 to the draft constitution, wanted a clarification from the assembly in the following words (Constituent Assembly Volume VIII, Book No. 3):

“Sir, the point which I wish to raise in my Amendment No. 1952 is a simple one. The Article contemplates that the Supreme Court should report to the President its opinion or in its discretion it may withhold its opinion. I believe what is meant is that when once the President refers the matters to the Supreme Court. If that is not meant than the language is right. But if it is meant that once the President refers a matter to the Supreme Court, it must report its opinion thereon to the President, then the word “shall” must come in. I wanted clarification on that point”

Shri H.V. Kamath did not move his amendment when Dr B.R. Ambedkar pointed out that the Supreme Court is not bound. Therefore, the Supreme Court is not bound to answer the presidential reference made under the article.

The Courts may refuse to make an opinion on the reference if “such a situation may perhaps arise if the questions formulated for the advisory opinion are purely socio-economic or political questions which have no relation whatever with any of the provisions of the Constitution, or have no significance” (paragraph 18 of Keshav Singh’s case). But the Courts have to give strong and compelling reasons. On questions of fact, Justice AN Ray stated in Re Presidential Poll case of 1974 in paragraph 38:

“The truth or otherwise of the facts cannot be enquired or gone into nor can Court go into the question of bona fides or otherwise of the authority making the reference. This Court cannot go behind the recital. This Court cannot go into disputed questions of fact in its advisory jurisdiction under Article 143(1).”

The Court in the case of Keshav Singh held that the present case involves “grave constitutional importance and significance and it is our [the Court’s] duty to make a report to the President embodying our answers to the questions formulated by [President]”. Hence, they accepted the reference made by the President for opinion. But the Supreme Court has the discretion and it may refuse to give an opinion on certain matters under clause 1.

Some earlier decisions: Understanding the “subject matter” of references

During the last seventy years since the constitution came into force, several references have been made to the Supreme Court under Article 143(1), but none under Article 143(2). I have taken note, in the tabular form, of a few references made by the President and the subject matter of the same.

Reference case & yearSubject-Matter
Re the Delhi Laws Act (1951)Scope and extent of executive’s legislative power under the Delhi Laws Act
Re the Kerala Education Bill (1958)Constitutional validity of certain provisions of the Kerala Education Bill which was reserved by the Governor for the President’s consideration
Re Berubari (1960)Guidance to central executive as to how it should implement the Indo-Pakistan Boundary agreement between the Prime ministers of India and Pakistan
Re the Sea Customs Act (1962)Validity of draft bill seeking to amend certain provisions of the Sea Customs Act of 1878
Re Presidential Poll (1974)Whether the election of the President could be held in absence of an elected State Assembly
Special Courts Bills (1978)Constitutionality of Special Courts Bill
Re in the matter of Cauvery Water dispute Tribunal (1992)Whether the tribunal established under the Inter-state Water Dispute Act, 1956, has power to grant an interim relief to the parties to the dispute
Re in the matter of Ram Janmabhoomi (1993)Whether a Hindu temple or religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid… in the area on which the structure of Masjid stood.
Re Supreme Court/High Court judges (1998)Nine questions were formulated on these three points: (a) consultation between the CJI and other judges in the matter of appointment of the SC and HC Judges; (b) Transfer of HC judges and judicial review of the same; (c) the relevance of seniority in making appointments to the Supreme Court
Gujarat Assembly Election matterAfter premature dissolution of assembly, question arose with regard to the time-frame within which election to the assembly must be held

Through various decisions, the Court has emphasised that abstract or speculative or hypothetical or too general questions should not be referred to it for an advisory opinion. But if this is done by the President, then the Court may return the questions pointing out the impediments in answering it.

Jurisdiction of “Consult the Supreme Court” prior to the adoption of the Constitution

Before the adoption of the Constitution, the Federal Court had similar power of advisory jurisdiction under Section 213 of the Government of India Act, 1935. Clause 1 of section 213 is the same as Article 143(1) of the Indian Constitution. Clause 2 of the Act of 1935 is similar to Article 145(4) and (5) of the Indian Constitution. Some of the principles of constitutional interpretation which the Federal Court laid down in its advisory opinions in relation to the interpretation of the federal provisions of the Government of India Act of 1935 have very well stood the test of time and remain valid and controlling even to-day in interpreting the Constitution. (See In Re the CP Petrol Tax Case of 1939, In Re the Hindu Women’s Right to Property Act, 1937)

Conclusion

Presidential references have always been made only when the issues have become clarified and crystallised by discussion amongst the general public and it has actually been possible for the courts to express an opinion. I believe that the advisory jurisdiction conferred on the court is important as it allows the executive to consult the Supreme Court and save itself from the embarrassment if a particular law is held to be unconstitutional later (as held in many cases in the past). But should an opinion under Article 143 be considered a law of the land or a precedent? If that’s answered in positive [see the arguments against this on here], then the impact of this position, however, is that “proceedings which take place in an unreal atmosphere may sometimes prejudice the interest of certain future litigants”. A clarified opinion of the precedent value must come from the Apex Court.  

Keshav Singh’s Case-I: A pamphlet which led to a Constitutional Crisis

In this post, I would be discussing the facts and incidents which led to paralysation of administrative machinery and a constitutional crisis.  Interestingly, due to these facts and circumstances, the largest bench of 28 judges was constituted—even more than the 13-judges bench in the landmark case of Kesavananda Bharti v. the State of Kerala.

Keshav Singh, resident of Gorakhpur (U.P.) and a worker of an opposition party [Socialist Party] published a pamphlet along with his two colleagues—titled Shri Narsingh Pandey ke Kale Karnamon ka Bhanda-Fod. In that pamphlet, they alleged that Narsingh Pandey, Congress party’s MLA, was corrupt. The pamphlet was distributed in Gorakhpur and the vicinity of the legislative assembly in Lucknow. The Congress party MLAs including Pandey were offended by the act, hence, they complained to the Speaker that the pamphlet ‘breached the rights and immunities enjoyed by the assembly and its members’. Keshav Singh and his two colleagues were summoned to appear before the House in Lucknow to receive a reprimand.

While the other two colleagues accepted a reprimand on 19th February 1964, Keshav Singh failed to appear before the House citing ‘lack of funds’ to travel from Gorakhpur to Lucknow. Subsequently, the Assembly ordered to arrest Singh and brought him to the assembly on 14th March. After he arrived at the assembly, he was ‘expected’ to be reprimanded just like his other colleagues, but he had other ideas. He refused to answer when the speaker of the assembly repeatedly asked him to confirm his name. He turned his back towards the Speaker and stood silently after every question was posed to him. Another incident happened which worsened the matter was that- Singh had written wherein he protested against the reprimand as statements in the pamphlet were true, and condemned the warrant of his arrest as ‘Nadirshahi’ (tyrannical). Then, the first woman Chief Minister Sucheta Kripalani moved a motion in the assembly for Singh to be imprisoned for 7 days and he was sent to prison. Until now, it was just gossip of the town.

On the 6th day of his imprisonment, an advocate filed a petition on behalf of Singh at the Allahabad High Court, seeking immediate release. It was contended that Natural justice principles were not followed as Singh was not allowed to defend himself and assembly lacked the jurisdiction to commit him to prison. The matter was placed before Justices Nasirullah Beg and G.D. Sehgal at 2 p.m. wherein Singh was represented by Advocate Solomon and assistant advocate general, K.N. Kapur, appeared on behalf of the state government. Kapur sought a pass over and requested the matter to be placed at 3 pm. However, at around 3 pm, when the case was called Kapur was not present, due to some reasons [whether deliberate or not—we never know]. Solomon argued the case and based on the arguments and facts, the High Court ordered that Singh to be released on bail subject to a condition that Singh should be present in court at every future hearing.

After this usual course would have been that state government should have filed an affidavit, but the Speaker, Madan Mohan Varma, a lawyer by profession thought this as a violation of the doctrine of separation of power and he had read the Mayne’s Parliamentary Practices– an authoritative book on Parliamentary procedures and practices. In his view, the order of the High Court “undermined the assembly’s exclusive authority to address a breach of its own privilege”. Surprisingly, after two days of the order, the House passed a resolution with a majority that Singh, Solomon and two High Court judges be bought “in custody” before the assembly to explain their acts. Imagine a judge of a constitutional court being summoned before the legislative house to justify his acts in the judicial capacity. Isn’t this violation of Article 211 which states that “[N]o discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties”?

From a mere political issue, the whole incident became a clash between constitutional institutions. It became more of a power game between the Hon’ble High Court and the Hon’ble Assembly. This was unprecedented and the judges of the High Court had no clue how to react to this summon of the Assembly. According to Senior Advocate Shanti Bhushan,

Justice Beg “was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court”.

There arose a conundrum between saving the honour of the Court and contempt of the Assembly. As per Chintan Chandrachud, “if the judges agreed to appear before the assembly, the episode would risk undermining the independence of the judiciary. On the other hand, if they appeared and offered a robust defence, the assembly might be left with no choice but to refrain from further action, lest it criticised for persecuting well-intentioned judges”. The judges to save their honour and the honour of the Allahabad High Court filed petitions before the High Court stating that assembly’s resolution violated Article 211 and they were represented by Advocate Jagdish Swarup. There was a conundrum about the bench allocation because what if the judges which decide the matter would also suffer similar consequences as faced by the petitioner-judges. Later Advocate Swarup offered his suggestion that all the judges of the high court (except Justices Beg and Sehgal) should sit together to hear the matter. This was a symbolic gesture and for the first time in the history of the Indian legal system, 28 judges sat for deciding the case. The rationale behind this unprecedented action was that securing custody of two judges was one thing, attempting to do so for every judge of the high court was quite another.

The judges sat in two rows which were also unprecedented and unseen. They admitted the petition and restrained the government from securing the execution of arrest warrants against the two judges. Later, even the assembly withdrew the arrest warrants against the judges and Solomon. This led to a lot of uncertainty and the police were rather confused about whether to arrest or not. As Chintan Chandrachud says,

If the police escorted the two judges and Solomon to the assembly, they would be complying with the resolution of the assembly but possibly in contempt of court. If they refused to do so, the police would be complying with the court’s order but defying the resolution of the assembly.

By this time there was a hassle in New Delhi as the news reached the Capital. The CM Sucheta Kriplani apprised the PM Nehru of the situation. Then, it was decided that a presidential reference shall be made to the President to “enable the court to rule decisively on the authority of the assembly on the one hand, and the courts on the other, to determine the scope of the privileges of the assembly”. The issue could have been decided by the Parliament or the assembly, but Nehru chose to refer it to the Supreme Court for further adjudication and ‘final decision’. A seven-judge bench was constituted which was headed by the Chief Justice Gajendragadkar in the Special reference no. 1 of 1964. [The law laid down by the Court, in this case, will be discussed in next posts on this blog]

In conclusion, an observation made by Chintan Chandrachud in this regard is worth mentioning,

“This case is worth remembering – if not nothing else, to demonstrate how easily constitutional institutions can turn against one another and, equally, how difficult problems are best solved through statesmanship rather than brinksmanship.”

[Note: I would like to thank Chintan Chandrachud for his insightful book “The Cases that India Forgot“]