While the law is the offspring of justice and democracy, at times it acts as the prodigal son of political adventurism. It is the rule that judges make rulings, but they also decide the hour of reckoning the majesty of the law has to be upheld, thereby defining the contours of democracy. Last week, deciding who was Delhi’s boss—the chief minister or the Lieutenant Governor—a five-member Constitution Bench led by Chief Justice of India Dipak Misra reiterated the unique spirit of the Indian Constitution by delivering a mammoth 500-page verdict taking note of the current climate of political conflicts and confrontations, while making it unambiguously clear that “there is no room for absolutism or anarchy under the Constitution".
The ruling showed the apex court is painfully aware of the ongoing bitter battles in various states and Union Territories between political factions and governments, disturbing and diluting the true spirit of federalism. With ideological intolerance spreading across political palatines, vague legal lacunae and ingeniously interpretative regulations are wielded to diminish the authority of elected state governments. Some states have tried to get even with the Centre through legislative provocations. Tensions between the Union government and states have often led to judicial intervention. But never before has the Supreme Court hinted that absolute authority and anarchist conduct are violating Constitutional discipline.
The 1975 Emergency is the only example of an elected sovereign acquiring Constitutional absolutism by holding legal and democratic institutions hostage.
In view of the extant confrontation between Delhi’s Lt. Governor Anil Baijal and Chief Minister Arvind Kejriwal even on routine issues like transfers and postings, the court delineated the difference between the powers of an elected government and an official chosen by the Centre. For the first time since the Delhi Assembly was created, the courts have delineated the purview of the Lt. Governor and the chief minister. Before AAP came to power, this relationship was smooth thanks to perfect mutual understanding.
Neither the BJP nor Congress chief ministers were embroiled in tendentious turf wars in previous administrations. Personal chemistry between the two officials and reciprocal respect allowed frictionless governance. But Kejriwal chose to assume full control of the state government and the Lt. Governor wasn’t in a mood to oblige, since he interpreted the CM’s moves as encroachment on territory which wasn’t his. However, the BJP and AAP have interpreted the SC verdict according to their convenience. While the former claimed it endorsed its views, the latter, being ideologically disruptive, saw it as an indictment of the BJP’s lust for absolute power.
However, the verdict’s significance doesn’t lie in the observations on the bailiwicks of the two power centres. It has mandated that the council of ministers headed by the chief minister will “aid and advise the Lieutenant Governor” and that the Assembly can legislate on all matters other than those relating to land, law and order and police—the domain of India’s top Constitutional authorities and institutions. But from day one, when Kejriwal was sworn in as Delhi’s chief minister, the Lt. Governor has been stalling most laws passed by the AAP government.
Last year the Centre returned 15 Bills passed by the Delhi Assembly on the plea that its prior approval wasn’t taken. Some of the legislation was to regulate school fee structure, decide the salaries of the Speaker, ministers and Leader of the Opposition, the appointment of a Jan Lokpal, establishing a Technology University and raising minimum wages. Meanwhile, in Karnataka, the President, for unknown reasons, had held up 10 Bills—from 2004-2014. The UPA government ensured that most of the legislation passed by the BJP government was put in the Rashtrapati Bhawan cold storage.
By restoring the legislative powers of the Delhi Assembly, the Supreme Court has once again made it clear that the Indian Constitution does not allow an unelected appointee to usurp the powers of a Constitutional body. The architects of the Constitution envisaged a federal system, taking into account India’s cultural, social and economic diversity. Article 1 states ‘India that is Bharat shall be a union of states’. Both the Centre and the states were expected to evolve a framework that would strike a balance between the interests of both.
With the rise of individual-centric politics, the Union government began to curtail the powers of states. Like in Delhi, the Centre began to commandeer gubernatorial authority to cripple any state government which was politically non-aligned with the party at the Centre. It is the Congress, which has resorted to maximum (mi)use of Article 356 to get rid of hostile state governments and hold back Bills passed by their Assemblies. Of the 115 times President’s rule was imposed in a state, in 85 instances, the Congress or a Congress-led alliance was in power at the Center.
The Janata Party led by Morarji Desai dismissed state governments 16 times in just two years—between 1977 and 1979. The BJP-led NDA, which ruled India for six years, also used puppet governors to sack unfriendly state governments seven times. The current NDA sarkar has used Article 356 only thrice so far. However, it has been atavistically aggressive in using pliant Raj Bhawans to install governments led by the BJP or its allies even when they did not win an absolute majority.
However, the threat to cooperative federalism doesn’t stem from the office of the Governor. It comes from the constitutional infirmity that defines the implementation of the principle of “aid and advice of the Council of Ministers”. While the President of India is bound by the Cabinet’s advice, it is not absolutely obligatory for a governor to always accept the advice of a chief minister. Instead, the governor can refer it to the President if he so desires.
The Constitution was built on the bedrock of idealism, not ideology. Hence, this rule was designed to prevent anarchists from destroying the foundations of federalism. But the compulsion of many Indian presidents to sign on the dotted line has only encouraged absolutism, as it happened in 1975. Now, Justice Misra and his colleagues have ruled out the possibility of democratic subversion by enforcing the dictum of checks and balances.
Applying well-known American economist Milton Friedman’s observation that “if you put the federal government in charge of the Sahara desert, in five years there'd be a shortage of sand” to the Indian democratic landscape, Occam’s razor would be useless for slicing through the mangled motherboard of mass mandates to arrive at the conclusion that power is responsibility, and absolute power is an absolute responsibility.
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