POV: THE DELHI JUDGMENT

We want a government of laws, not men’, said John Adams in 1780. Cicero similarly told us that ‘we are all servants of the law in order that we may be free’. The rule of law over the rule of men is indeed an unqualified good. Having a constitution is not, in itself, a great achievement; Hitler too had the Weimar constitution, and so have there been constitutions in the erstwhile Soviet Union and Saddam Hussein’s Iraq, but they were devoid of any ‘constitutionalism’—the idea that limits the powers of government.

Once again, democratically elected leaders across the world are turning authoritarian, and the real threat to democratic governance today is from the ballot, not the bullet; the era of military coups is over. This global trend is clearly visible in Poland, Hungary, the United States, Turkey, Russia, Venezuela, India… India and America have both slid in their rankings on the democratic index in recent years. In fact, today, only 4.5 per cent of people in the world live in a genuine democracy.

The World Justice Project’s latest Rule of Law Index, which ranks 113 countries on their adherence to the rule of law, and is based on 44 parameters, puts India at a lowly #66. On the parameter of constraints on government power, which is fundamental to the idea of ‘constitutionalism’, our score is dismal. In the latest rankings of the Varieties of Democracy (V-Dem) Institute, a research project that tries to evolve new measures of democracy, India’s rank is seen dropping in the past four years, with a marked concentration of powers in the hands of one individual.

The Supreme Court’s recent judgment delineating the powers of the Delhi state government vis-à-vis the Centre, and its appointee, the Lieutenant Governor, expresses the court’s anxiety on the dangers of authoritarianism. Delhi is neither a full state nor just another Union Territory; it has an elected legislative assembly and a responsive government. But in the past three years or so, two LGs—Najeeb Jung and Anil Baijal—have, in an obstructionist mockery of an elected government, referred all files indiscriminately to the President—or, in effect, even as per the July 4 judgment, to the central government. Fact is: no Governor or LG acts on his own; Indian governors follow their immediate British predecessors in terms of loyalty to their masters in Delhi and always act at their behest.

CJI Dipak Mishra authored a powerful 237-page majority opinion, on behalf of Justice A.K. Sikri, Justice A.M. Khanvilkar and himself, demolishing the Centre’s arguments favouring the LG as the ultimate boss of Delhi. He went to the extent of stating that the Lieutenant Governor of Delhi was not even a Governor, but rather only an ‘Administrator’, who must, therefore, act on the ‘aid and advice’ of the council of ministers. There was no need, Misra said, to even seek the concurrence of the LG in each and every matter, and that other than the three reserved subjects

of law and order, police and land, he must go by the opinion of the elected government. With the Delhi judgment, the CJI, who has been accused of being soft on the Modi government, has certainly wrongfooted his critics, though the litmus test will be the potentially contentious Aadhaar judgment and the decision on ongoing arguments in the Babri Masjid case. Justice D.Y. Chandrachud too has authored an authoritative opinion, concurring with the CJI and noting that democracy is in danger from the authoritarian tendencies manifest in several countries. Justice Ashok Bhushan’s concurring opinion also favoured vesting real power in the representative government rather than in a nominated LG. What, then, is the central message of these three concurring judgments? How will these judgments contribute to our constitutional journey? What more could we have expected from these judgments?

The judges, without saying it in so many words, have expressed their concern about the demise of constitutionalism, and talk about a disturbing trend towards authoritarianism bordering on totalitarianism. They express concern about the violation of the principles of distribution of powers between federal and local governments. They express shock at the absence of constitutional trust between various constitutional offices, and to see that the functionaries of these offices are not adhering to the principles of our constitutional democracy in the exercise of their powers. Without even squarely addressing the dispute at hand, the judges deftly reiterate the broad and fundamental principles of our Westminster-style liberal constitutional democracy. In which, the Crown/ President/ Governor/ Lt. Governor are nominal/ titular heads, with real power vested in the elected government. In other words, the Lt. Governor of Delhi may reign, but he has no powers to rule.

Justice Dipak Mishra devotes 120 pages in his judgment to the constitutional theory, and observes without mincing words that the Supreme Court is interested in upholding the ‘glory of constitutional democracy’, in a ‘constitutional renaissance’ through a conscientious implementation of ‘representative democracy’, in which the people’s elected representatives wield real powers for the betterment of Indian citizens, in whom ultimate sovereignty vests. Accordingly, Misra further asserts, in applying constitutional provisions, we need ‘pragmatic and purposive’ interpretations rather than ‘strict and literal’ ones, keeping in view the ‘spirit of the Constitution’, ‘participatory democracy’ and ‘the rule of law’.

Justice Misra acknowledges that ‘constitutional morality’ or an unqualified adherence to constitutional principles, is not a natural instinct, and, therefore, those vested with powers have a tendency to turn authoritarian. He rightly observes that the idea of constitutional morality has to be cultivated through conscious effort. One only hopes our politicians will pay some heed to the CJI’s timely advice.

The CJI also talks of ‘constitutional objectivity’ as a mechanism of checks and balances, so that the organs of state operate in their allotted spheres and do not encroach on each other’s domains. The idea of ‘legitimate constitutional trust’, he argues, is similarly based on the distribution of powers between national and local governments. The provision allowing the LG to refer ‘any matter’ to the President should not be read as ‘every matter’; the power of referral must be exercised with ‘constitutional objectivity’, in exceptional situations, for compelling reasons, argues Misra. The LG does not have the power to overturn every decision or even disagree with every decision of the council of ministers. Moreover, the LG should not invoke the ‘right to differ’ in a disagreement with the council of ministers. In effect, the LG cannot refer issues to the President in a ‘routine or mechanical manner’.

These words may have fallen on deaf ears going by the turf battle the LG and the Centre are still waging, insisting the court has not yet decided the issue of Services and the Anti-Corruption Bureau. The Delhi government moved the court for an early hearing by a regular bench, but this was declined by the CJI. It would have been ideal if the Constitution bench had explicitly quashed the LG’s decisions on these two matters, and this loophole has taken some sheen off an otherwise historic verdict.

The Delhi judgment is against authoritarianism and a reckless exercise of powers by any constitutional authority. Sadly, within two days of this landmark judgment, a two-judge bench of the Supreme Court itself violated the spirit of constitutionalism, yet again insisting—in the Shanti Bhushan case—that the CJI has absolute powers as the ‘master of roster’ and is fully entitled to handpick judges in the constitution of benches. This position is tenable, of course, in a literal interpretation of the Supreme Court Rules, and is even supported by earlier judgments like Prakash Chand (1997), Kamini Jaiswal (2017) and Ashok Pande (2018). But shouldn’t the CJI’s own powers also be subject to the principles of ‘constitutionalism’ and ‘purposive interpretation’ so eloquently defended in his Delhi verdict? Constitutionalism dictates that no authority, bar none, including the CJI, can or should have ‘absolute discretion’, which is the antithesis of constitutionalism.

The Delhi verdict is against authoritarianism and a reckless exercise of powers by any constitutional authority