Collective Responsibility

Source: The Hitavada      Date: 09 Jul 2018 14:19:17


 

The Constitution bench holds that the Lieutenant Governor of Delhi has to act as per the aid and advice of the Council of Ministers of Delhi Government except in matters of land, police and public order. It also held that the LG cannot interfere in each and every decision of the Delhi Government. Although the decisions of the Government have to be communicated to the LG, there is no need to obtain the concurrence of LG in all matters.

IN THE very significant judgement of the case – Government of NCT of Delhi v. Union of India and Another, delivered on July 4, 2018, a 5-judge Constitution Bench of the Supreme Court, has underscored the concept of collective responsibility with the observation that “If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated”.


The Constitution Bench consisting of the CJI Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan, through three separate and concurring judgements, have held that the Lieutenant Governor of Delhi has to act as per the aid and advice of the Council of Ministers of Delhi Government except in matters of land, police and public order. It held that the LG cannot interfere in each and every decision of the Delhi Government. Although the decisions of the Government have to be communicated to the LG, there is no need to obtain the concurrence of LG in all matters. The Court also held that Delhi was not a ‘State’, and it occupies a special status under the Constitution.


In the judgement authored by the Chief Justice of India Dipak Misra (for himself and Justice Sikri and Justice Khanwilkar), it has been stated that Constitution has to be interpreted in such a manner to enhance its democratic spirit. Its interpretation should not lead to annihilation of representative participation by engagement of citizenry. In a democratic republic, collective is the Supreme and the elected representatives reflect the will of the collective.


Spirit of constitutional morality negates the concentration of power in the hands of a few. The decisions by constitutional functionaries must have normative reasonability and acceptability. Principles of constitutional governances have the twin principles of fiduciary nature of public power and system of checks and balances. Parliamentary form of Government is based on principles of collective responsibility of the Cabinet. If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the LG, then the concept of collective responsibility would stand negated.


Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order.


The Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious coexistence and interdependence so as to avoid any possible constitutional discord. The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain.


The status of NCT of Delhi is sui generis, a class apart, and status of the LG of Delhi is not that of a Governor of a state, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.


With the insertion of Article 239AAby virtue of the Sixty-ninth Amendment, the Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital’s directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the LG to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.


The interpretative dissection of 239AA(3)(a) reveals that the Parliament has the power to make laws for the NCT of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi has also the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List.


A conjoint reading of clauses (3) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co-extensive with the legislative of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if the Parliament makes law in respect of certain subjects falling in the State List or Concurrent List, the executive action of the State must conform to the law made by the Parliament.


The Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Assembly has been excluded. In respect of other matters, the executive powers are to be exercised by the Government of NCT of Delhi. The meaning of ‘aid and advise’ employed in Article 239AA (4) has to be construed to mean that the LGT of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the LG does not exercise his power under the proviso to clause (4) of Article 239 AA. The LG has not been entrusted with any independent decision making power. He has either to act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. The words ‘any matter’ employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean “every matter”.

The power of the LG under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the LG keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government.


The LG should not act in a mechanical manner, without due application of mind so as to refer every decision of the Council of Ministers to the President. The difference of opinion between the LG and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.


The LG, being the administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. (An attempt will be made in the next week’s piece to have a look at the salient points of the separate but concurring judgements of Justice Dr. D.Y. Chandrachud and Justice Ashok Bhushan).
(To be continued)...