Month: March 2021

Posted on

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.

Posted on

Guest Post: The Untouchability provision under the Indian Constitution and its contemporary Interpretation

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog]

What is Untouchability?

Defining untouchability has always been an arduous task for both the layman and the experts. Britannica defines an untouchable as someone who is a Dalit, officially Scheduled Caste, formerly Harijan, in traditional Indian society, the former name for any member of a wide range of low-caste Hindu groups and any person outside the caste system. Article 17 of the Indian Constitution lays down the provision for abolishing untouchability stating that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. However, the article in itself does not define the term untouchability presuming it is  known to one and all. 

Evolution of Article 17

In pursuance of Article 17, the Parliament passed the Untouchability (Offenses) Act in 1955. However, the Act fails to define untouchability itself. With respect to the practice of untouchability, the Act makes it a crime to disallow any person from entering public veneration due to the practice of untouchability among other things. 

More than 70 years ago, when the framers of the Constitution were debating this Article in the Constituent Assembly, economist and socialist leader K.T. Shah wanted the Drafting Committee to clarify this: ‘We all know that at certain periods women are regarded as untouchables…will it be regarded as an offence under this article? The question arose from the lack of definition of the term “untouchability”. With respect to the same, K.M. Munshi argued that in the draft Constitution, the word “untouchability” had been deliberately placed within quotation marks – thus making it clear that the idea was to “deal with it in the sense in which it is normally understood” (i.e., the narrow, specific sense). Despite this, another Constituent Assembly member, Naziruddin Ahmad proposed an amendment which stated that no one shall be treated or regarded as an ‘untouchable’ on the basis of their caste or religion, thus wanting to water down the word to make it less ambiguous. However, the same was rejected by the Chairman of the Assembly, Dr. B R Ambedkar. 

While some of the debates focused on the caste- centred aspect of untouchability, the definition of the word could not  be narrowed down. From the deliberations over Article 17, it seems that the framers felt the need to incorporate a separate provision for Untouchability in the Constitution apart from Article 14 and 15. It appears from the discussions in the Constituent Assembly that the practice was so widespread and prevalent that the drafters had to specifically call out and criminalise the same. 

Sabarimala Judgement and the Renewed Debate over Article 17

Facts of the case : Sabrimala is a Hindu temple dedicated to Lord Ayyappa, located in Kerala. Being a place of pilgrimage, the shrine is visited by 45-50 million devotees every year. In 1991, the Kerala High Court banned the entry of women above the age of 10 and below 50 years from entering the temple stating that only the priests of the temple can make the decision as to who can and cannot enter the temple. In 2006, the ban was contested  by the Indian Young Lawyers Association who claimed that the ban was  “a violation of ideals of equality, non-discrimination and religious freedom”. The following year, the (Left Democratic Front) government in Kerala led by Chief Minister VS Achuthanandan had filed an affidavit in the court supporting the PIL (Public Interest Litigation) and questioned the ban on entry of women devotees. The Apex Court in 2017 referred this case to a constitution bench with the most pertinent question being : Does this ban on women from entering the temple amount to violation of their fundamental rights as enshrined in the Indian Constitution?

The Supreme Court in 2018 declared the ban on menstruating women from entering the shrine at the Ayyappa Temple as unconstitutional. The majority believed that women must be treated equally with their male counterparts under Articles 14 and 15 and affirmed their right to freedom of religion under Article 25. The petitioners in the case argued that Article 17 of the Constitution prohibited untouchability “in any form.” The question, therefore, was whether the banning of women from entering  the temple fell within the ambit of Article 17. 

For Justice Indu Malhotra, the meaning of the word untouchability was straightforward. According to her, Article 17 intends  to prohibit caste-based untouchability only. It does not cover other forms of social exclusion. In advocating against literal interpretation of the Article, she cites various academics, precedents, and debates of the Constituent assembly to make her point. She even emphasised on the lack of other precedents that grant Article 17 an alternative meaning. 

Justice Chandrachud did not disagree that untouchability primarily includes caste-based discrimination and exclusion, however he did not believe that the provision solely included the aspect of caste. While acknowledging the efforts of the drafters of the Constitution to remove the perils arising out of caste hierarchy, J. Chandrachud took the literal meaning of untouchability in any form to include menstrual taboos in the scope of the Article. He took Article 17’s roots of “purity and pollution” and literally interpreted the phrase “in any form” to advance this provision to the exclusion of women. He Further stated that by the order of prioritisation, the right to religious freedom is to be “exercised in a manner consonant with the vision underlying the provisions of part III.” Therefore, the banning of women from religious worship is subordinate to constitutional values of liberty, dignity and equality. 

Conclusion

Article 17 puts the word “untouchability” within quotation marks, suggesting that its meaning is limited to its specific, historical sense i.e. untouchability based on caste hierarchy. Consequently, while barring of women of menstruating age from a temple is undoubtedly a practice of segregation, exclusion, and enforcement of hierarchies like untouchability, the question remains whether this practice can be included in the term “untouchability.” Justice Indu Malhotra counter arguments and dissenting voice has also been subject to criticism. It is argued that J. Malhotra sets a dangerous precedent when she says that the rationality of a religious practice should not be questioned by the Court. The dissenting argument presented by Justice Malhotra in rejecting the merits of Article 15 and 17, come from a restrictive practice of constitutional interpretation through an “originalist approach” that is based on the intention of the framers of the Constitution at the time of drafting the text. The critics believe that originalism as a method of constitutional interpretation has been losing relevance and becoming redundant while the “living tree” doctrine (the constitution as an evolving and organic instrument) has gained prominence. 

From a reading of the Constitutional Assembly debates, it can be inferred that the framers intentionally left the meaning of the term untouchability vague. It is possible that the framers felt that new forms of social exclusion can arise in the future, thus they did not delve into defining the word. There is, therefore, strong warrant in the constitutional text and drafting history for the broad reading of the term untouchability. To quote J. Dipak Misra, in a recent judgement, “a constant awakening as regards the text, context, perspective, purpose and the rule of law” is to assert constitutional morality and the dignity of women across castes of a particular faith in this case as an overriding constitutional goal. 

* Read Shreya Singh’s article titled “Untouchability In India: An Age-Old “Social Distance” Still Maintained” here to understand Article 17 further. (Read here)