The Supreme Court’s Constitution bench judgment in Government of NCT of Delhi v Union of India is the latest exhibit in what is becoming a nuanced and well developed position of the court on federalism. While the reference may have arisen on the unique nature of the arrangements made for the National Capital Territory of Delhi in the Constitution, the principles that have been used by the Constitution Bench to arrive at its conclusion suggest a broader and permanent shift in the court’s thinking on federal issues.

The key issue at stake in the tussle between the lieutenant governor and Aam Aadmi Party government was the nature of Delhi’s statehood. To be clear, both sides accept and understand that Delhi is not quite a state in the same way that Uttar Pradesh or Karnataka are states for the purposes of the Constitution. Both sides also perhaps agree that unlike the Lakshadweep Islands, Delhi cannot be ruled by fiat by the lieutenant governor, because it has an elected Assembly, chief minister and council of ministers.

The issue really boils down to this – is the National Capital Territory of Delhi more like a “state” (as the Aam Aadmi Party government argued in court) or is it more like a “Union territory” (as the lieutenant governor and the Union government argued). The Supreme Court’s eventual conclusions agree with the Aam Aadmi Party’s interpretation of Article 239-AA of the Constitution – that even though the National Capital Territory of Delhi does not have a state list of exclusive legislative powers, whatever concurrent powers of legislation it does have comes from the Constitution itself and is therefore plenary. This puts it in the “more like a state” category rather than the “more like a Union Territory” category.

This is an important point and highlighted by all the three judges who delivered separate opinions in the case. Unlike states, even though Delhi does not have exclusive legislative power on any subject and shares it all with the Union, yet, as Chief Justice of India Dipak Misra pointed out, “pragmatic federalism” requires that the government of Delhi acts on its own save in exceptional circumstances where the lieutenant governor refers a dispute to the President of India. Justice Chandrachud saw Article 239-AA as indicative of the federal structure of the Constitution and even the limits he imposes on the lieutenant governor’s powers seem to suggest unless there are some “national issue” at stake, the Union government should not really be bothering itself with Delhi’s governance at all. Only Justice Ashok Bhushan did not explicitly ground his conclusions on federal principles but he did largely agree with Misra and Chandrachud.

Heart of Indian federalism

What they are saying goes to the heart of what federalism is – that in India’s context a state’s power to administer and govern is not a gift of the Union or the benevolence of Parliament but plenary power bestowed by the Constitution. By framing the battle between the government of the National Capital Territory and the lieutenant governor as not only over one of Parliamentary democracy (an elected government versus an appointed administrator) but also one of federalism, the Supreme Court has signalled its nuanced understanding of how the various basic features of the Constitution interact with each other.

For all its failures in standing up to government excesses against citizens and even the judiciary itself in the past, one area where the judiciary has had an excellent track record has been in federal issues. For all the lip-service paid to cooperative federalism, the Narendra Modi government has, in practice, tried all the tricks in the book (and attempted a few new ones) to undermine the federal character of India’s Constitution. However, on issues as diverse as President’s rule, centre-state taxing powers, and most recently, discretionary powers of the governor in hung assemblies, the Supreme Court has decisively thwarted efforts to weaken the federal structure of the Constitution.

Limits to judicial power

That said, the Supreme Court, as a judicial body, can only go so far. We see the limits of judicial power even in the lieutenant governor-Aam Aadmi Party case. By no means should we assume that the judgment, as definitive as it is about the nature of the power of Delhi Council of Ministers vis a vis the lieutenant governor, puts an end to all conflict between the two. Indeed it cannot do so. In as much as it can prescribe the rules and procedure on how to proceed in case of a conflict, it cannot over-prescribe who shall prevail in all instances of conflict between the Union and the Delhi governments. In the context of states, the provisions of the Constitution are much clearer, and to ease Delhi’s administrative dysfunction perhaps only a constitutional amendment is needed.

But it should not stop only at that. Delhi’s governance problems are not just Delhi’s problems. They are indicative of the stresses and strains that India’s federal system currently faces. One source of this structural problem is the perennial conflict between an elected government accountable to the residents of a state and the governor or lieutenant governor accountable to the Union government. In just the last year, we have seen some variation of this conflict in Karnataka, Tamil Nadu, and Puducherry, to name just a few states and Union Territories. This is not a feature, it is a bug. At the Union level, this problem does not happen because the President is indirectly elected and indirectly accountable to the people via the Lok Sabha. Is it not possible to rethink the post of Governor, to make the person who occupies it more directly accountable to the residents of the state and therefore strengthen India’s federal Constitution?

As Machiavelli said, “Never waste the opportunity offered by a good crisis.” One hopes therefore that the demand for full statehood for Delhi also sparks off this wider discussion about the role of lieutenant governors and governors under the Constitution.