The two judgments of the Supreme Court’s constitution bench, headed by Chief Justice D.Y. Chandrachud, on May 11, ironed out India’s federal ambiguities, redefining federal institutionalism and processes.
The most noteworthy pronouncement the court made, quoting Dr B.R. Ambedkar, was that India is federal, not federal with unitary features.
Further, the questions it answered are the extent and limits of the constitutional powers of a governor/lieutenant governor, the Union government, a Union Territory with an elected legislative assembly, and a government led by a popularly elected chief minister. By questioning the role of the governor in Maharashtra in the political crisis that led to the fall of the Maha Vikas Aghadi government, the judgment clearly states that a governor must rise above party affiliation in such situations.
It is as much a statement on the Union government’s choice of gubernatorial candidates.
These two landmark judgments are the most significant constitutional milestones post-Bommai judgment. The Bommai judgment put a brake on the controversial role of governors during the Indira Gandhi and Rajiv Gandhi rules in destabilising elected governments and recommending Article 356. Post-Bommai judgment the office of governor has been used to destabilise elected governments without using Article 356, which the judgment had made justiciable. The judgments are nothing short of India’s federal renaissance.
The Delhi case
The judgment is a decisive statement on the status of Delhi.
Post-1857, Delhi regained its capital status only when the capital of the British Raj shifted from Calcutta (now Kolkata) to Delhi in 1911. In independent India, the 69th Amendment Act, 1991, described the Union Territory of Delhi as National Capital Territory, Delhi (NCTD) and gave it an elected legislative assembly and a government led by a chief minister.
The first election was held in 1993 and power remained with the BJP till 1998, when the Congress won and Sheila Dikshit’s 15-year-long reign started. There was some controversy between the Union government and the NCTD government when Lal Krishna Advani was the Union home minister, but the two seasoned politicians sorted it out.
The controversy between the Arvind Kejriwal-led government and the Union government began in 2015 and worsened with Anil Baijal as the lieutenant governor since 2016. It touched an all-time low after V.K. Saxena took over in 2022. The interference by Amit Shah’s home ministry has been obvious. The powers of the government of the NCTD have been usurped gradually through ordinances.
In 2018, the controversy reached the Supreme Court, which clarified that Delhi is neither a state nor a UT. Settling the dispute between the lieutenant governor (read the Union government) and the government of the NCTD, the judgment has put Delhi closer to a state than a UT. The elected government of the NCTD draws its powers from the Constitution vide Article 239 AA, 239 AB and in certain cases 239 B. The Supreme Court stressed that the powers cannot be curtailed but through a Constitution amendment.
Hence, the Delhi government has been given full powers except police, public order and urban land. The transfer of the senior all-India service officers allotted to Delhi government can now be done by it without any reference to the lieutenant governor.
As a popularly elected government, the Delhi government is answerable to the legislative assembly as are the officers of the government. This is how popular sovereignty, which is shared in the Indian context, is celebrated.
Also read: Did the Supreme Court Truly Give the Delhi Government a ‘Big Win’?
The Maharashtra case
The toppling of the Uddhav Thackeray-led MVA government in Maharashtra through split/defection by the BJP in June 2022 also raised questions of representative government and federalism. Starkly, the focus of the judgment was on the role of then Maharashtra governor BS Koshiyari, who has since resigned.
A whole gamut of actions relating to the controversial episode was challenged in court. The motion moved by the Shinde faction to remove the speaker, the recognition by the speaker of the Shinde faction’s whip as official and two actions by the governor, who called Thackeray to seek a trust vote and invited Shinde to form the government once Thackeray had resigned. Each of these actions was held unconstitutional by the court.
The proper procedure pointed out by the court was that it is the political party’s whip which is admissible, not of the legislature party, particularly when a split was so apparent. The governor could have asked Thackeray to seek a trust vote for his government only when the MLAs of the Shinde faction had expressed no confidence in the leader. This was obviously not done because that could have led to their disqualification by the speaker.
Also read: Shiv Sena Case: SC’s Trust in Maharashtra Speaker’s Neutrality Appears Misplaced
The speaker’s role in not disqualifying the split Shinde-led Shiv Sena faction under the Tenth Schedule was also questioned by the judgment. The court felt that the faction could not have claimed split to avoid disqualification under the given circumstances. However, the Supreme Court left the decision on declaring either of the factions as the real Shiv Sena to the Election Commission of India. Yet, since Thackeray resigned on his own without facing the assembly, the apex court did not restore his government, despite finding the actions of the speaker and the governor unconstitutional.
Questioning the propriety and constitutionality of both the instances, the two judgments put a brake on defiling of the federal institutionalism in the country. Notably, by quoting Ambedkar’s Constituent Assembly statement, the apex court stressed that it did not matter if the term federal was not mentioned in the constitution of India.
Ajay K Mehra is a political scientist. He was Atal Bihari Vajpayee Senior Fellow at the Nehru Memorial Museum and Library, New Delhi, 2019–21.
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.
