Tuesday, October 3, 2023

Federal Morality

Ruling on the power war between the elected governments of Delhi and Maharashtra versus their centrally-appointed governors, the Supreme Court has sought to bind and shackle the Delhi Durbar’s autocrats with the chains of the Constitution.

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By Justice Kamaljit Singh Garewal

Both judgments of the five-judge Bench of the Supreme Court pronounced on May 11, 2023, in Government of NCT of Delhi vs Union of India and Subhash Desai vs Principal Secretary, Governor of Maharashtra, have defined and curtailed gubernatorial powers and functions. The main feature in both cases was the tussle between centrally appointed governors and their state governments.

In the Delhi case, the controversy centered around the lieutenant governor’s (L-G’s) jurisdiction over civil servants, while in the Maharashtra case, the actions of the governor to push out a democratically elected chief minister were under scrutiny.

Britain does not have a written constitution, but a host of conventions, precedents and practices. The leadership of the Conservative Party in the House of Commons, and consequently the prime minister, kept changing repeatedly. Theresa May gave way to Boris Johnson who gave way to Liz Truss and finally, Rishi Sunak is the British prime minister. All belonged to the Conservative Party and leadership changes took place peacefully, but were intra-party matters. No floor crossing. No confidence votes. This must be due to the maturity of the British people and basic constitutional morality.

When on August 27, 2019, Prime Minister Boris Johnson advised the Queen to prorogue the Parliament, within a month a judgment of 11 judges of the Supreme Court of the United Kingdom declared that the House had not been prorogued. In the opening paragraph, Lady Hale and Lord Reed (president and deputy president) said that the issue “arises in circumstances which have never arisen before and are unlikely to ever rise again…..our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution”. How simply worded and how well said. The above could well be said of both judgments, Government of NCT of Delhi and Subhash Desai.

One is reminded of Sir Winston Spencer Churchill, the war-time leader of Britain but an arch imperialist, in his thought and approach. He understood democracy for sure, when he said that “at the bottom of all tributes paid to democracy is the little man, walking to a little booth, with a little pencil, making a little cross on a little piece of paper –no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point”.

Coming to the question of federalism, at the time of Indian independence, there were only two types of administrative units: provinces and princely states. Only the 11 provinces came under the Government of India Act, 1935. They were Punjab, United Provinces, Bihar, Bengal, Assam, Orissa, Central Provinces, Bombay, Madras, Sind and North West Frontier Province, the last two went completely to Pakistan. But there were nearly 560 princely states which had their own systems of administration and treaty arrangements with British India. The provinces were essentially federal in character under a written constitution. Princely states were largely autonomous, but recognised Britain as the paramount power.

After independence, the provinces became Part A states under a governor with a legislative assembly and the princely states became Part B states under a Raj Pramukh with an elected legislature. Delhi was a Union Territory under a Chief Commissioner and a Part C state. In the early years, Delhi also had a chief minister and an assembly.

Under the Constitution (Sixty Ninth) Amendment, 1991, Article 239AA was introduced making special provision with respect to Delhi. This gave Delhi a legislative assembly with the power to make laws in respect of matters in the State List and the Concurrent List except on matters relating to public order, police and land.

The main issue between NCT Delhi and the Union of India was with regard to “services” as per Entry 41 List II, which related to State Public Services and the State Public Service Commission. The argument of the Union of India was that Delhi did not have legislative competence over this entry because Part XIV of the Constitution dealt with services under the Union and the states. It did not contemplate any services under a Union Territory. The Court held that the executive power of Delhi was co-extensive with its legislative power and therefore, the L-G was bound by the decision of the Delhi government on “services”.

The Court rejected the centre’s argument based on the traditional view that our Constitution was federal with a unitary bias. The centre also submitted that as regards Union Territories, the Constitution was essentially unitary. This argument was also rejected. The Court asserted that democracy and federalism are essential features of the Constitution and form a part of its basic structure. It also held that federalism is a means to reconcile the desire for commonality along with the desire for autonomy and accommodates diverse needs in a pluralistic society. Regional aspirations strengthen the unity of the country and embody the spirit of democracy. In any federal constitution, there is a dual polity and two sets of government operate—one at the level of the national government and the second, at the level of regional federal units. These governments are elected in two separate electoral processes and are a dual manifestation of the public will. The priorities of the two sets of government are not just bound to be different, but are intended to be different.

The Court further said that in a democratic form of government, the real power of administration must reside in the elected arm of the state. The elected government needs to have control over its administration, and if this is not provided, the triple-chain of collective responsibility will be redundant.

The election to the 288-seat assembly in Maharashtra was held in October 2019. The party break-up was: BJP 106, Shiv Sena 56, NCP 53, INC 44. Others were Independents and some minor parties. The people of Maharashtra had spoken. A post-election grouping of SS + NCP + INC came into existence and was christened the Maha Vikas Aghadi. Uddhav Thackeray became the chief minister, while Eknath Shinde, the group leader of Shiv Sena. So far so good.

A few years later in June 2022, the Shiv Sena split into two factions. The reason is not clear, but it was definitely not over any principle or ideology or deviation from the party line. It was a typical power struggle, probably encouraged by outside forces.

Shinde lost the position as group leader of the party, but flew his group to far away Guwahati to plot the next move. This wasn’t really enough to assume that the chief minister had lost the confidence of the House. The tussle was within the Shiv Sena, not between the Shiv Sena and NCP or INC. Without any basis, the governor decided to ask Thackeray to test his majority on the floor of the House, but the CM fearing he would lose the vote, put in his resignation. And the governor accepted it, much to the jubilation of the BJP as they returned to the government.
It is obvious that the governor had interfered in the inner working of the Shiv Sena (both the political and the legislative wings). May be he was in cahoots with Shinde, who later became the chief minister. The governor’s demand for floor test was totally uncalled for.

The Subhash Desai judgment has covered all the arguments and rapped the governor on the knuckles because he did not have objective reasons to conclude that Thackeray had lost the majority and, therefore, must prove it on the floor of the House. Quite sensibly, Thackeray was not restored to chief ministership because he had resigned, leaving the governor with no choice except to swear in Shinde.
The Court also heard arguments based on Nabam Rebia (2016) in which case the Supreme Court had ruled that it would be constitutionally impermissible for a Speaker of the House to adjudicate upon disqualification petitions under the anti-defection law as per Tenth Schedule, while a motion for his/her own removal from the office of Speaker was pending.
A similar position was created in Maharashtra in June 2022 when a group of dissidents, fearing disqualification by the Deputy Speaker, moved to remove him. The judgment doubted the correctness of the decision in Nabam Rebia and referred the matter to a larger bench of seven judges. It was also held that the Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period. An MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for his disqualification.

The Constitution bench of the Supreme Court in both cases has laid down strong, immutable guidelines for governors to follow. In doing so, it has strengthened federalism and democracy. Federalism in partnership with democracy must dance together. Let the dance go on, be it a waltz, a jive or a bhangra. Don’t stop the music, don’t change the number mid-way, don’t shut the dance halls.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York

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