The procedure for the appointment of the chief justice: against the principle of merit

 

The Judicial appointments process provides a particularly effective case study to illustrate the way in which the construction of merit is a dynamic process which can only be carried out with reference to the qualifications of the potential candidate pool. In common with many other appointments processes, the lack of any criteria in the appointments made, has consistently been attributed to a failure to properly apply the merit principle. The Supreme Court has at instances, recognized the importance of merit but has pestered continuously that Seniority is the fundamental consideration factor and merit is an additional measure under “strong cogent reasons.”  But the authors question whether this aim of avoiding subjectivity, is doing justice to judicial independence?

The present blog seeks to do a jurisprudential analysis as to how the appointment procedure of the Chief Justice of India has the tendency to erode the concept of “merit” which is the biggest hallmark for the appointment of the Judges in any country.

The appointment procedure- Defilement of the “Sovereignty of Merit”

The lack of solid and rigid definition of merit and unclear wordings of Article 124 raises an issue of great constitutional importance that though the Constitution requires merit to be the criterion in the appointment of Judges, it does not define it. Nor has the Court defined it.

Perhaps it never had the occasion or opportunity to define it. Its closest expression on some kind of definition is the seniority rule for the appointment of the Chief Justice of India and other Judges of the Supreme Court. It goes no further. It does not apply to appointments of High Court Judges. It also fails to apply if appointments to the Supreme Court are made from the bar or from amongst the jurists. Thus, in any case, in a wide variety of situations merit for the appointment of Judges remains undefined and undiscussed.

Concept of merit in Indian Judicial system

A key feature of a strict merit-based system is that the determination of the relevant qualifications for each position should be derived solely on the basis of the functions to be fulfilled. The most qualified person is the one whose characteristics and abilities are such that they will be most likely to perform those functions effectively. Critics and supporters of existing selection systems generally agree that in order for the determination of what constitutes merit to be free from prejudice it must be constructed without taking into account the background of the members of the potential candidate pool.

The function of a merit- based selection system is the selection of the most qualified amongst those who are willing and able to occupy the position. In order for the notion of merit to be translated from an abstract principle into a set of concrete qualifications which can be used to achieve this result, there must be an assessment of the nature of the potential candidate pool.

Without knowledge about who the potential candidates are likely to be, selection systems would regularly and inevitably devise qualifications which would be pitched either too high or too low. The result would be either a failure to appoint any or enough candidates or a failure to attract sufficiently highly qualified candidates and that is the biggest drawback of the seniority convention.

The appointment of the Chief Justice of India is a regular process and for a selection system in which appointments are made on a regular basis, this process of translating merit into job qualifications and selection criteria in a way which pitches appropriately to the available candidate pool is relatively unproblematic. The biggest problem with the seniority convention is that it has reduced the appointment procedure to a mere selective group, where a group of seniors are all in line to become the Chief Justice of India.

In this regard the authors find it pertinent to state the observation of Pandian J in the Second Judges case[i]:

“It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group.”

According to Punchi and Ahmedi J.J.[ii] “the seniority principle and principle of legitimate expectation would only push merit to the second place and seniority will have a role to play only when both candidates are of equal merit.” According, to Kuldeep Singh J. “the selection of Chief Justice of India must be based on objective standards and not by mere seniority.” The learned Judge further held that there is no existing convention of appointing the senior most puisne Judge as the Chief Justice. The appointment should be based only on merit and seniority role has no application.

In Re. Special Reference[iii] the court held that a Judge of outstanding merit can be directly appointed as the judge of the Supreme Court. This above-mentioned exception creates an unanticipated and sudden instability in the candidate pool which brings a sharp correction to this process and demonstrates very clearly the close relationship between the make-up of the potential candidate pool and the definition of merit.

This approach is not, of course, unique to the judiciary. But the strength and consistency of that commitment is arguably stronger than many other public and professional selection processes because of the particular role and function of judges. The argument that selecting a less qualified over a more qualified candidate is unjust to the candidate passed over applies to the allocation of all positions in a selective appointments system. But the extent of the unfairness is affected by the particular type of position being allocated.

The recent trend of the collegium shows us that the apex court has moved on with the seniority convention with respect to the appointment of the Judges at the apex court. Therefore, the seniority convention with respect to the appointment of the Chief Justice of India does not appears to be any meticulous.

If one delves into the history, then it can be seen that the seniority convention does not have any constitutional backing. Prior to the independence there has been instances where advocates have been directly appointed as the Chief Justices of the High Court. Thus it can be inferred that the seniority convention was more than an exception rather than a rule. This particular convention only began with the appointment of the Patanjali Sastri, when he was appointed as the first Chief Justice of India.

Short tenure- An injustice to the legacy of the post of Chief Justice of India

One of the biggest drawbacks of the seniority convention is that it acts as an indentation on the tenure of the Chief Justice of India in simpler terms this convention does not do justice to the post of Chief Justice of India by providing a short tenure.

Till date Justice Y.V. Chandrachud had the longest tenure of serving the Chief Justice of India for a duration of 7 years whereas Justice K.N. Singh had the shortest tenure which lasted only 18 days. On an average till date no Chief Justice of India had a tenure of more than a year. Such duration not only does injustice to such a sacred post but also prevents the Chief Justices to bring some long-term radical changes in legal profession. The same was highlighted by Justice Sathasivam the 40^th CJI two days before his retirement.

The limited number of days that each CJI has in his disposition makes it hard to resolve the more critical issues that have been pervasive in the legal system. Also, when a CJI would have perceived the issue, the date of retirement moves nearer. The execution consequently stays unfulfilled. It is imperative that frequent changes cause systemic inefficiencies, raise incoherence in strategies for dealing with ongoing issues, and jeopardise the leadership stability that a large and well-respected organisation requires.

Defilement of the Consultative Procedure

The principle of independence of Judiciary cannot be equated with the seniority convention, because it fails to recognize the merit. The appointment of CJI is not based upon the consultative process which only undermines the procedure established by law.

In the Second Judges case[iv] the court emphasised that the phraseology used in Article 124(2) indicates that it was not considered desirable to vest absolute discretion of power of veto in the Chief Justice of India as an individual. The phrase “consultation” means “an opinion formed collectively” i.e. the primacy of the CJI formed after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.

However, no such opinion is taken into consideration while appointing the CJI. The appointment of the CJI is based only upon a mere recommendation which is put forth by the outgoing CJI. This process makes the CJI as the collegium where his sole recommendation has the primacy, which very much goes against the law laid down by the apex court in Second Judges case. This recommendation though not binding upon the Executive. Apart from two exceptions till date there has been no deviation from this practice.

The authors would like to contend that such vesting of power in single hand goes against the Rule of Law. Hence, violates article 14 of the Indian Constitution. An adjunct of this principle is “the absence of absolute power in one individual in any sphere of constitutional activity. Therefore, the meaning of the “opinion of the Chief Justice” is “reflective of the opinion of the Judiciary” which is formed after taking into account the views of some other Judges who are traditionally associated with this function and in the present case this consultation is absent.

CONCLUSION

A strict adherence to Seniority is badgered because of two powerful reasons, the importance of tradition and the insistence on objective criteria, and these influential forces shape the functioning of Indian Judiciary today. Seniority has unquestionably served the Judiciary well in many ways, but it is now merely an antiquated facet of tradition.

In the arena of appointments, objectivity has become synonymous to fairness and any decision made without the objective standards is instinctively met with accusations of corruption and skulduggery. This attitude hinders sound-decision making and leads to peculiar outcomes that are worse than the malice it was intended to address. A feasible alternative to this hornets’ nest could be inclusion of merit.

Moreover, the power of recommendation with the outgoing Chief Justice of India are reminiscent of a verse by Decimus Junius Juvenalis, a Roman satirist who, while condemning imperial Rome's vices, stated, "Sed quis custodiet ipsos Custodes?" (Who is to guard the guards themselves?).[v] The fact that the pater familias of such a significant and puissant Judiciary is appointed by an opaque and conventional procedure in a constitutional democracy is certainly saddening. This vast amount of power and authority, with no checks and balances, undermines judicial accountability, a crucial aspect of judicial independence in a republican democracy.

There are more than enough reasons for the seniority convention and the non-consultative powers of Chief Justice to be given a proper send-off. It is not as objective as it claims to be, results in absurdly short tenures for chief justices, ridicules Rule of Law in a participatory democracy and is a strategic tool used when convenient. But, in order to do so, we need a different, clearly articulated method of appointment to take its place. Without it, all appointments, no matter how well-intended, will appear unscrupulous.

It is probably past time for India to demonstrate that, as a mature polity, it is willing to place its faith in decisions made by accountable public authorities using well-established and transparent procedures.

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[i] AIR 1994 SC 268.

[ii] Id.

[iii] AIR 1999 SC 1.

[iv] Supra note ii.

[v] A v British Broadcasting Corporation (Secretary of State for the Home Department intervening), [2015] A.C. 588.

(Biyanka Bhatia & Shreshth Srivastava are students from University of Petroleum and Energy Studies, School of Law)

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Codification of the Basic Structure Doctrine: Its implications, costs and better alternatives.

 

The “Basic Structure Doctrine” is the most potent tool in the hands of the judiciary to maintain and check the balance of power that is required for the smooth functioning of the Indian Democracy. Legal systems always have a hierarchical normative order (1-wh). Each system in such an order always derives it authority from a system above it in hierarchy. A constitution whether written or unwritten, contains the norm of exalted authority and hence, is of the highest importance in any legal system. The constitution lives the closest to the “basic” norm of the legal system and derives its nature and character from it. (7-wh) This “basic” structure is the identity of a legal system and it is not desirable for elapses of time to sweep away its essential features. Recent literature calls for the codification of the basic structure doctrine, in an attempt to define its limits and effectively try to reduce the lack of judicial accountability that lies with its use.

The objective of this paper is to argue against its codification and propose some better alternatives. I will show how a codified doctrine has a theoretically unjustifiable form and would bring along numerous adjudicatory pitfalls. 

Every single feature of this doctrine was developed to address a situation that arose before the court in a particular case. Keshavnanda[i] never provided any affirmative theory about how the basic structure doctrine is to be discerned beyond a Potter Steward-esque view.[ii] Justice Chandrachud, in Indira Gandhi v Raj Narain[iii], promulgated the non-exhaustive nature of the doctrine in saying that "the theory of Basic Structure has to be considered in each individual case, not in the abstract, but in the context of the concrete problem.” Codification of the basic structure doctrine would be a potential threat to its legitimacy. This would be caused by a lack of conceptual crystallization of the doctrine’s elements and its potentially arbitrary use by the judiciary. I will also highlight a theoretical limitation of codifying the doctrine through legislative amendment.

I argue that firstly, it is not possible for the judiciary or parliament to predict all possible situations that would arise and must be protected by the doctrine. We still do not know if all what is considered to be basic today is conceptually crystallised.

The exact contents of this doctrine are not yet laid out conclusively. The way it has evolved has upset some major philosophical assumptions about legislative sovereignty and the boundaries of constitutional authority.[iv] The foundations of this doctrine have been built upon profound deliberation over multiple cases before attaining crystallization. It is likely that certain elements are still in this process and will move towards finality as individual cases would require its use over time. If at a certain instance, the doctrine is codified, it is possible that firstly, some elements would be left out and secondly, some that have not fully developed, be included. Let’s take the example of Judicial Review. If codification occurred immediately after Indira Gandhi, then Judicial review would not have been a part of the doctrine. The situation then created in Minerva Mills[v] would face great difficulty. Either the court would have to invoke it as an unwritten principle, making the initial process of codification futile, or have the legislature add it to the code, which would be impossible given the political situation. The unwritten nature provided the Supreme court with room for a “self-styled benchmark of structural essentialism” [vi] that helped judicial review become a part of the basic structure when required. This power has been the centre of much debate and the proponents of codification seek to define its limits. Codification, however, will lead to more problems. It will cause the arbitrary use of the basic structure doctrine. A misguided illusion of clarity, generally associated with codification principles, will only amplify these issues.

Courts bind themselves by precedent so as to prevent arbitrary and inconsistent decision making. A written doctrine will allow a court to depart from judicial precedent by invoking the written text as a generically valid reason and hence, weaken the “judicial commitment to stare decisis.”[vii] Two features of a codified doctrine could be the reason for this claim. Firstly, the existence of an authoritative code would give definitive answers to questions of constitutionality. This would be explicitly expressed by the codified doctrine. Now, the second feature – the doctrine’s status as essential unamendable law would give possibly baseless interpretations by the judiciary, ratification. The court can insist that it is merely executing what the code dictates. Of course, the degree of this insulation would depend on the abstraction and generality of the codified doctrine. The constitution of Honduras has a highly specific eternity clause that dictates the character of the government.[viii] The 2009 Honduran Constitutional Crisis can be thought of as a direct result of the presence of such a specific dicta that blurred boundaries between rules and principles.[ix]The avenue to depart from precedent and such judicial insulation may not just encourage arbitrary behaviour, but also intellectual sloppiness and an opportunity for judges to pursue personal political agendas.[x]

Proponents believe that codification will provide clarity about the limits on legislative action.[xi] However we must understand that the meaning of many substantive principles, when formulated in a normative context- are inherently unclear. The political concepts associated with words such as “equality” and “liberty” are highly contested.[xii] Codification will present such contested concepts as clear and indisputable. This would only create and illusion of clarity and solidify the aura of judicial opinion that tries to define it, having negative consequences on any judicial or even societal debate over the content of such principles.[xiii]

One of the biggest problems faced by any legal system is to balance itself between maintaining stability and continuity on one hand, and flexible and responsiveness on the other. The form of the constitution, and more remarkably, of the basic norm that sustains it, plays a deterministic role in its position between these two extremes. The form of a codified foundation fails to strike the right balance mentioned above. An unwritten basic structure doctrine will find a better balance between this much required stability, and the need for some malleability to adapt to the changing needs of society. It does this as the uncodified elements respond to “policies and concerns of a society in an organic, diffuse manner without any compromise of stability.”[xiv]

Although not directly related to adjudication, I want to address the theoretical baselessness of having the legislature codify the basic features of a constitution. The 15^th Amendment Act[xv] in Bangladesh, constitutionalized the essential features of their constitution and explicitly confirmed the limited amending power of the legislature. According to the ‘delegation theory’, “limitations upon the delegated secondary constituent power can solely be imposed by the higher authority from which it is derived – the primary constituent power.”[xvi] The validity of an unamendable doctrine codified by the legislature would be threatened when faced by a conflicting norm created by the same authority. Such codification, therefore, would be administered by the maxim – “lex posterior derogat priori”. The Bangladeshi Amendment was criticized by constitutional theorists who founded their claim on this maxim, arguing that a constitutional amendment cannot establish its own unamendibility. An implicit or unwritten doctrine would naturally come into existence for maintaining the legitimacy of such aamendment, making the initial process of codification theoretically futile. A national referendum could help in legitimizing such a code without an unwritten interpretation but conducting a fair referendum to know the true ‘will’ of the people would face some serious practical problems in the context of India.[xvii]

Many misjudgements have been woven into the unwritten doctrine that have caused critics to advocate for its explication. The doctrine has often been invoked in situations when the meaning of the subject constitutional norm has several reasonable interpretations. It is possible that judges link their own cores of jurisprudential understandings on questions of basic structure, even when reasonable minds might differ in opinion.[xviii] The lack of constitutional accountability and restraint has cause people to advocate for its codification and consequently, the explication of its limitations.

It is well received that its reins cannot be let loose without any accountability. However, for striking the right balance between restraining ‘constitutional’ procedures used to achieve unconstitutional ends and the unnecessary, baseless or overt use of this doctrine, codification is not the answer. Maybe two possible solutions exist.

Instead of codifying the doctrine and limiting its resilience against the unpredictable challenges posed by the various routes of action that can be adopted by anti-democratic actors, an approach where courts are influenced by democratic principles rooted in constitutional systems beyond the borders of its own jurisdiction, can be considered. The expansion of this idea would go beyond the scope of this paper.

The reformation of judicial review can also be explored. The doctrine was created in special circumstances to protect the fundamental structure of the constitution.  However, today, the unnecessary and excessive use of the doctrine is a reality that threatens its very special character.  It has been “extensively invoked to affect policy decisions”[xix] and its indifferent evocation has been the root cause of resentment against it. Explication or codification of the doctrine is, again, not the answer to limit such use. Rather, the process of judicial review needs to be restructured in a way that protects the basic features of the constitution against infringing laws without the actual invocation of the doctrine itself. This argument derives its strength from the understanding that any law which violates the basic nature of the constitution, would also, in most likelihood, be inconsistent with some other part of the constitution. This particular law could breach some fundamental right or some other constitutional provision which does not necessarily mean that the law is violative of the basic structure. In such a scenario, the judiciary must use the lower principle to invalidate the law. In other words, a law that is expected to infringe the basic structure, should not pass the judicial scrutiny of an applicable constitutional provision. The repeated use of the doctrine will not just impair it but also motivate institutions to bypass its moral authority.[xx]The restructured judicial review process can prevent this, without the need for codification and its associated issues. 

It must be noted that the core of both these opinions revolve around the willingness to trust the judiciary and the application of their discretion in protecting the Constitution of India. It would be a stretch of our imagination to believe that the decisions of a court fall neither towards the constitution not towards the ‘consent of the governed’.[xxi]The case against the doctrines codification far outweighs its benefits, especially in the light potential solutions for the shortcomings of an uncodified basic structure doctrine.

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[i] AIR 1973 SC 1461

[ii]Jacobellis V. Ohio, 378 U.S. 184, 197 (1964) (Stewart J., Concurring).

[iii]1975 AIR 1590

[iv]Satya Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’,

Constitutional Transformations and The Future of Political Progress In India, 1 NUJS L. Rev. 417 (2008)

[v]1980 AIR 1789

[vi]Supra 3

[vii]Pek, Jane. (2008). Things Better Left Unwritten? Constitutional Text and The Rule of Law. New York University Law Review (1950). 83.

[viii]Honduras Const. Article 374

[ix]Friedman, A. (2011). Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies.

[x]Richard A. Posner, The Problematics of Moral and Legal Theory 264 (1999).

[xi]William E. Nelson, Americanization Of the Common Law 90 (1975)

[xii]Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 800 (1989)

[xiii]F.A. Hayek, Law, Legislation and Liberty: Rules and Order 86 (1983). 107

[xiv]Supra 7

[xv]Bangladesh Const. (Fifteenth Amend.) Act, 2011.

[xvi]Roznai, Y. (2013). Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea. The American Journal of Comparative Law, 61(3), 657-719. Retrieved from Http://Www.Jstor.Org/Stable/43668170

[xvii]Excerpt from Y. Roznai, Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, Oxford, Oxford University Press, 2017 (Part Ii, Ch. 4, 5).

[xviii]Rosalind Dixon, David Landau, Transnational Constitutionalism and A Limited Doctrine of Unconstitutional Constitutional Amendment, International Journal of Constitutional Law, Volume 13, Issue 3, July 2015, Pages 606–638

[xix]Supra 3

[xx]Supra 3

[xxi]Levinson, S. (1995). Responding To Imperfection: The Theory And Practice Of Constitutional Amendment. (Course Book Ed.). Princeton: Princeton University Press. 

 (Avantika Rai is a student of OP Jindal Global Law University)

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The Government of National Capital Territory of Delhi Amendment Act, 2021: Against the principles of the Constitution

On 28^th March, 2021 the President of India gave his assent to the Government of National Capital Territory Amendment Act, 2021 which seeks to enhance the power of the Lt. Governor and limits the power of the elected Government’s power in Delhi. The main aim of this blog is to provide a holistic analysis as to how this Act is against the very cherished principles of the Constitution i.e. “Popular will of the people”, Constitutionalism, Federal nature of the Constitution and Constitutional Morality and how this Act tends to overshadow the ratio of law decided by the Supreme Court in the case of Government of NCT of Delhi v. UOI[i]

A BRIEF ABOUT THE ACT

The NCT Amendment Act, 2021 brings drastic changes with regards to the powers exercised by the Lt. Governor. The new law amends Sections 21, 24, 33 and 44 of the GNCTD Act, 1991.[ii] The objective of the 1991 Act as highlighted by the apex Court in the Government of NCT of Delhi case[iii]stated that, “The said Act will promote harmonious relations between the Legislature and the Executive, and further defines the duties of the elected Government and the Lt. Governor, in consonance with the Constitutional scheme of governance of National Capital Territory of Delhi”. However, the 2021 Amendment Act completely reverses the situation.

The GNCTD (Amendment) Act, 2021 clarifies that the ‘Government’ in Delhi would mean the ‘Lieutenant Governor’. After a bill has been passed by the Legislative Assembly, it shall be presented to the Lt. Governor, who would decide whether to give his or her assent to the bill or to save it for the consideration of the President, further the Delhi Government is required to seek the opinion of the Lt. Governor after the passage of a bill before considering any executive action. The Lt. Governor, under the amendment has been ‘necessarily granted an opportunity’ to advice the Delhi Cabinet before the implementation of any law and restricts the Assembly or the Committees from conducting inquiries related to administrative relations or the matters concerning the day-to-day administration of the Assembly.

Violation of the popular will of the people

In a democratic republic, the people who are the sovereign elect their law-making representatives for enacting laws and shaping policies which are reflective of the popular will of the people. The trite saying that democracy is “for the people, of the people and by the people” has to be remembered for ever. In a democratic Republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government and this popular will defines the ‘Spirit’ of the Constitution.

However, the present Act seems to negate this ‘Spirit’ of the Constitution. The present act minimizes the role of the elected Government and enhances the power of the Lt. Governor. By minimizing the power of the elected Government, the principle of the Representative Governance in a Republican form of democracy wherein the people of a nation elect and chose their representatives has been violated because now the power is vested with an authority who does not represent the popular will of the people and such act violates the principle of rule of law, the apex court in the case of State of Bihar v. Bal Mukund Shah[iv]held that:

“Besides providing a quasi-federal system in the country and envisaging the scheme for distribution of Legislative powers between the State and the Centre, it emphasizes the establishment of Rule of Law. The form of Government ideated under a Parliamentary system of democracy is a representative democracy in which the citizens of the country are entitled to exercise their sovereignty.”Therefore, the present act undoubtedly lexographise the sovereignty of the people.

The ultra democratic conception of sovereignty is, premised on the very concept of the “will of the people” the parliamentary form of democracy as envisaged by the Constitution has its very base the power bestowed upon people to vote and make the Legislature accountable for their functioning to the people. If the Legislature fails to transform the popular will of the people into policies and laws the democracy like ours have the power to elect new representatives by exercise of their vote. So, the question which now arises whether the elected government of the NCT of Delhi failed to perform its duties? The answer is no.

The present act appears to be a political whip on the Preamble of our Constitution, as the Preamble tells us, the document was adopted by “We the People of India”. It is through this expression the sovereignty of people is defined and when the people have elected their representative then in which democracy does the Government possess the power to overshadow the “popular will of the people”? Therefore, the authors are of the firm viewpoint that this act is nothing but a finesse to jeopardized the power of the elected Government.

Against the principle of Constitutionalism

The present Act seems to bypass the established norms and conventions of the decision-making policy. When the terms Constitutionalism and Constitutional Governance are read together they defines the fundamental polity of law which effectively controls the exercise of political power. However, the present act defiles this spirit of the Constitution, by vesting the power of law making into the hand of the authority whose job is to aid and advice the Council of Ministers.

The Constitution distributes the powers in such a manner that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the State.[v] However, in the present Act there is a disruption of the powers because it is against the will of the State and the will of the State is the will of the people. The power given to the Lt. Governor under proviso to Article 239 AA (4) contains the rule of exception and should not be treated as a general norm. The Lt. Governor must act with Constitutional objectivity keeping in mind the high degree of Constitutional Trust entrusted in him while exercising the special power consecrated upon him. As per the 1991 Act and Rules of Business, Lt. Governor has to be apprised of every decision taken by the Council of Ministers but he cannot the change the decision because this restriction has been conferred upon him by the Constitution and he should protect the interest of NCT of Delhi and the principles of Constitutionalism but sadly the act mandates that the elected Government must take the Lt. Governor’s opinion before taking any Executive action. In a similar manner according to Section 2(3) of the Amendment Act, 2021 it specifies that the Government of Delhi will mean the Lt. Governor and not only this it goes one step ahead and highlights that Lt. Governor does not have to act on the advice of the council of ministers.

According, to proviso to Section 4 (b) of the Act the legislative assembly or its committees can no longer make rules to empower itself or its committees to consider the issue of everyday administration or conduct inquiries according to administrative decisions. Making the law retrospective, the Act provides that such framed law will be declared void. Thus, this act practically takes away all the powers of the elected Government.Within a Federal Constitution like ours the tasks of the Government are divided into between the Center and the State and this division of powers is one of the aspects of the Constitutionalism which must not be overreached by any act of the Parliament. Therefore, the present act is against the principle of Constitutionalism.

Against the Federal nature of the Constitution

In a democratic nation any law must be in accordance with the principles of Constitutional objectivity and symphonious with the spirit of the Constitution[vi] and balance of federalism is one such spirit of the Constitution and Article 239-AA is a classic example of the hallmark of federalism in our Constitution which reserves the Legislative primacy of Parliament in certain limited areas but there is no such corresponding provision in the Constitution which reserves the Executive power of the Central Government.The essential feature of a federation is that in it the two types of governments- the Central and the State should be both independent in their spheres and coordinate.However, The GNCTD (Amendment) Act, 2021 has changed this course for the National Capital Territory of Delhi. Not only has this act undermined the powers of the elected Government of Delhi in absolute terms, but has also upturns the Supreme Court’s landmark judgment in 2018, which upheld the primacy of the elected legislature in matters of governance. The Constitution Bench[vii]very well held that the Lt. Governor was to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor was permitted to exercise his own discretion.The court also held that the “status of the Lt. Governor of Delhi is not akin to that of a Governor of a State, rather his position remains of an administrator, in a limited sense, working with the designation of Lieutenant Governor” and that the elected government must keep in mind that Delhi is not a State.However, the new law vests enormous powers in the hands of the Lt. Governor which is abusive of the doctrine of pith and substance and crumbles the solid foundations of federalism and democracy on which our country has thrived.[viii]

Against Constitutional Morality

Another aspect on which this act fails to pass the Constitutionality test is that this act is against the concept of Constitutional morality. Constitutional morality in simpler terms means strict adherence to the established principles and norms of the Constitution. In the case of Krishnamoorthy v. Sivakumar[ix]held that“Constitutional morality acts as an instrument which provides a proper check and balance against the infirmities on the part of the Governmental agencies and colorable activities which affects the democratic nature of polity”.

The present act is one such colorable activity which mars the very concept of Constitutional morality. All the above discussed principles are the essential elements of the Constitutional morality and with the implementation of the act a hindrance will be created in the proper administration of the NCT of Delhi. Another major aspect of the Constitutional morality is that it prevents Government from turning tyrannical in the instant case the NCT of Delhi occupies a special status and the elected Government is vested with the power to take decisions in the proper administration of the Government whereas the Lt. Governor only act as an advisory authority. However, the present act reverses the situation and now the elected Government has been reduced to a mere advisory body thus establishing the tyranny of the Central Government. An act which can erode the popular will of the people, which can mar the federal nature of the Constitution and which can defile the principle of Constitutionalism. Such act can never justify the principle of Constitutional morality.

Against the ratio of law decided in Government of NCT Delhi v. UOI

An ingrained reading of Article 239AA (4) highlights that the role of the Lt. Governor is an advisory one and only in the case of difference of opinion he can refer the matter to the Lt. Governor.The Article further highlights that the Lt. Governor is bound by the aid and advice of the Council of Ministers and the same was highlighted by the Constitutional bench that “Article 239AA (4) provides Constitutional status to the Council of Ministers, whose duty is to aid and advice to the Lt. Governor on matters which are co-extensive with the Legislative powers.” But the present act provides the provision of ‘prior concurrence’ of the Lt. Governor which is undemocratic in nature and very much against this verdict.

As per Article 239AA(4), the Lieutenant Governor must act on the aid and advice of the Council of Ministers in respect of matters which fall within the legislative competence of the Legislative Assembly, or in which he is not required by or under any law to act in his/her discretion or exercise his/her judicial or quasi-judicial functions. Therefore, the President through the Lieutenant Governor shall not administer the NCT of Delhi in respect of matters over which the Legislative Assembly of the NCT has authority to make laws.[x]

The Lieutenant Governor occupies aposition which is hybrid in nature, in simpler terms, matters in which the Legislative competence is vested with the Legislative Assembly of Delhi, he would act on the aid and advice of the Cabinet. Article 239-AA defines a well-established Legislature for Delhi which is completely different from the body constituted by Parliament under Article 239-A to function as a Legislature for a Union Territory. There is a distinction between a body constituted by Parliament and the legislature created by the Constitution.[xi]Under Article 239-AA, a Cabinet form of Government has been put in place for Delhi wherein the Council of Ministers along with the Chief Minister are collectively responsible to the people of Delhi and consequently the Lieutenant Governor is bound by the aid and advice of the Council of Minister headed by the Chief Minister.[xii] Therefore, the present act clearly subdues the ration of law decided by the Constitution bench in the instant case.

CONCLUSION

The present amendment act can be very well compared to the situation which once arose in Russia in 1991 when the elected President of Russia in the Soviet Union's newly minted democracy Boris Yeltsin challenged Mikhail Gorbachev's right to rule Moscow as President of the Soviet Union, there has been two tiers of the same Government in the annals of modern nation States.

Though under Article 239 the Union Territories are administered by the President acting through an administrator to be appointed by him. But this does not mean that the Union Territories agglutinates with the Central Government. They are centrally administered but they retain their independent identity.[xiii]The Lt. Governor can only exercise his powers only on those subjects which he is authorised to do else he is bound by the aid and advice of the Council of Ministers headed by the Chief Minister. Since NCT of Delhi is being governed by a democratically elected Government. The defence taken by the Center that the present Act is Constitutionally valid under Article 239 i.e. administration of the Union Territories does not hold any grounds because the territory of Delhi as a part “C” State under the First Schedule to the Constitution was a separate and distinct constitutional entity as from that of a Chief Commissioner’s province under the Government of India Act, 1935.[xiv] By virtue of the Constitution (69th Amendment) Act, 1991, under Article 239-AA Delhi has been given a special status and this status cannot be overshadowed by any act of the Parliament.Therefore, the authors are of the firm viewpoint that this act is a classic example of political animosity which defiles the very spirit of the Constitution.

(Neha Bhandari & Shreshth Srivastava are 3rd year law student of School of Law, University of Petroleum and Energy Studies, Dehradun)

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[i] (2018) 8 SCC 501.

[ii] The Government of National Capital Territory of Delhi (Amendment) Act, 2021, No. 55, §§ 21, 24, 33, 44 (2021).

[iii]Supra note 1.

[iv] (2000) 4 SCC 640.

[v]See id.

[vi]See id.

[vii]Supra note 1.

[viii]See id.

[ix] (2015) 3 SCC 467.

[x] Anil Kumar v GNCT of Delhi, 2015 (4) ADR 758.

[xi]Shiv Kirpal Singh v. V.V. Giri, (1970) 2 SCC 567.

[xii]UNR Rao v. Indira Gandhi, (1971) 2 SCC 63.

[xiii] Chandigarh Admn. v. Surinder Kumar, (2004) 1 SCC 530.

[xiv]Express Newspapers Pvt Ltd v UOI, AIR 1986 SC 872.

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