New Delhi: The Supreme Court on Wednesday pulled up the Central government for stepping on the domain of the Delhi government beyond the matters of land, police and public order of the national capital that are vested in it.
The exercise of establishing a democratic and representative government for the national capital by inserting Articles 239AA and 239AB would turn futile if Delhi government that enjoys the confidence of people is not able to usher in policies and laws over which the state assembly has power to legislate, said Chief Justice Dipak Misra.
The real purpose behind giving Delhi limited statehood, the court said, was to establish a democratic setup and representative form of government where a majority has a say in the laws and policies pertaining to Delhi within the limitations imposed by the Constitution.
Elected representatives and the Council of Ministers, being accountable to the voters, must have the appropriate powers so as to perform their functions effectively and efficiently, the court said in the main judgment authored by CJI, which puts to rest the three and half year long tussle between the Centre and Delhi government over who controls the reign of power to administer the national capital.
Also speaking for Justice A.K.Sikri and Justice A.M. Khanwilkar, Chief Justice Misra said that it is not only the decision itself but also the process adopted in such decision-making which should be in tune with constitutional objectivity.
A decision by a constitutional functionary may, in the ultimate analysis, withstand scrutiny, and unless the process adopted for arriving at such a decision is in “tandem with the idea of constitutional objectivity, it invites criticism.”
Thus, the court said, the decision making process should never bypass the established norms and conventions which are time-tested and should affirm to the idea of constitutionalism.
In a note of caution, the judgment said that a representative form of government should not become a government by elites where the elected representatives do nothing to give effect to the will of the people.
“The elected representatives must not have an ulterior motive for representing their constituents and they should not misuse the popular mandate awarded to them by covertly transforming it into ‘own rule’,” said Chief Justice Misra.
In his separate, but concurring judgment, Justice D.Y. Chandrachud said that an elected government in a democracy reflects the aspirations of the people who vote to elect their representatives.
“The elected representatives carry the responsibility of giving expression to the political will of the electorate. In a democratic form of government, real power must subsist in the elected arms of the State.
“Ministers of government are elected representatives of the people. They are accountable to the people through their collective responsibility to the legislature,” he said.
Noting that Delhi as a Union Territory was distinct from other Union Territories, Justice Chandrachud said that the “constitutional provisions governing it are an amalgam between national concerns (reflected in control by the Union) and representative democracy (expressed through the mandate of a Council of Ministers which owes collective responsibility to a directly elected legislature)”.
“Constitutional statesmanship between the two levels of governance… ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience,” he said, adding that the court had to step in only because skirmishes between the two have raised constitutional issues of the proper distribution of executive control over the National Capital Territory.
In discharging his constitutional role, Justice Chandrachud said that the “Lt Governor has to be conscious of the fact that the Council of Ministers which tenders aid and advice is elected to serve the people and represents both the aspirations and responsibilities of democracy” and neither the Constitution nor the enabling legislation, hold that every decision of the executive government must receive the Lt Governor’s prior concurrence before it can be implemented.