India is fortunate that its courts have not had to resort to the doctrine of necessity
“Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern,” writes Justice D.Y. Chandrachud in his concurrence to the Supreme Court’s judgment in Government of NCT of Delhi v. Union of India. A story from across the border illustrates precisely what the judge means.
A cautionary tale
The Indian company Mahindra & Mahindra is today well-known for its rugged vehicles. The enterprise began when two brothers with engineering backgrounds and bureaucratic careers quit to form a company to manufacture the American Willys jeep on license in India. That jeep has had several avatars and its descendants, the Scorpios and the XUVs, still rule Indian roads. The company however began as Mahindra and Mohammed.
The Mohammed in question was Sir Malik Ghulam Muhammed. A chartered accountant who looked after the financial side of the enterprise, he was formerly a civil servant of the Indian Railway Accounts Service. After Partition he left the company for Pakistan and became its first Finance Minister under Liaquat Ali Khan. When Liaquat was assassinated, Pakistan’s Governor General, Khawaja Nazimuddin, became Prime Minister and Mohammed, Pakistan’s next Governor General.
Unlike India, which had adopted its Constitution in 1950, Pakistan had not succeeded in framing a Constitution. The Government of India Act 1935 and the Indian Independence Act 1947 continued to operate. When language riots broke out in East Pakistan in the 1950s, Governor General Ghulam Mohammed dismissed Prime Minister Nazimuddin, resorting to reserve powers under the colonial scheme of the Government of India Act of 1935. When the Constituent Assembly of Pakistan sought to limit the Governor General’s powers, he dismissed the Assembly in 1954.
The Assembly petitioned the Sindh High Court, which ruled in its favour, but the decision was overruled by a split decision in the Pakistan Supreme Court by a bench headed by Chief Justice Muhammad Munir. Justice Munir had held that it was necessary to go beyond the constitution to the common law, to general legal maxims, and to English historical precedent. He had relied on Bracton’s maxim, “that which is otherwise not lawful is made lawful by necessity”.
An appointed Governor General thus effectively became the ruler of Pakistan. Ghulam Muhammed however fell ill, and appointed another former bureaucrat, Iskander Mirza, as acting Governor General. In 1955 Mirza dismissed Ghulam Muhammed, to become Governor General himself. Later when Pakistan’s Constitution was finally adopted in 1956, Mirza became President. In 1958 he was overthrown by his own hand-picked army commander, General Ayub Khan. When martial law was challenged in the Supreme Court in 1958, the doctrine of necessity was again used to repel the challenge. Judicial interpretation thus made necessity the mother of martial law.
In recent times, Najeeb Jung and Anil Baijal, as Lieutenant Governors of Delhi, seemed to play Governor General. They overruled the elected government of Arvind Kejriwal (himself another former bureaucrat) on almost every issue of administration. They relied on a proviso to Article 239AA of the Constitution, which provides that “in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”
Sealed by the court
Thus in almost all administrative matters of consequence, the Lieutenant Governor acted as though he was the final word and that it was not necessary for him to seek the aid and advice of the elected government. A government for 20 million residents of Delhi was told that it could not govern if the Lieutenant Governor chose to not let them govern. Last week’s Supreme Court judgment in the Government of the NCT of Delhi has finally put an end to such constitutional coups. Cutting to the heart of all the political and constitutional wrangling, the judgment unanimously affirms the principle of an elected representative being vested with the power to administer democratically. It negates the bureaucratic usurpation of power that sought to operate in constitutional interstices, at the instance of an inimical central government.
The majority judgment of Chief Justice Dipak Misra says: “There is no room for absolutism. There is no space for anarchy… Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry… This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. 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.”
Justice Chandrachud in his concurrence holds that, “In a cabinet form of government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as its head. The aid and advice provision contained in the substantive part of Article 239AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advise of the Council of Ministers, this recognises that real decision-making authority in a democratic form of government vests in the executive. Even when the Lieutenant Governor makes a reference to the President under the terms of the proviso, he has to abide by the decision which is arrived at by the President.”
Justice Ashok Bhushan while broadly concurring with the other two judgments holds that the “LG has to be kept informed of all proposals, agendas of meeting and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through the proposals and decisions so as to enable him to exercise the powers as conceded to him under 1991 Act and Rules 1993… the purpose of communication is not to obtain his concurrence….”
Three and a half years of a five-year term have been lost in a constitutional wrangle, caused as much by the bureaucracy as by the politicians. Apart from administration, what has suffered is the reputation of the bureaucracy for impartial, apolitical governance. Bureaucrats have picked sides in the political battle and have lost, in court and in public esteem. Administrative paralysis has been used for political chokeholds.
A telling pun
I leave you with one last story of Pakistan. In 1958 the President responded to a state of political chaos by declaring martial law, and calling out the army. A section of the public punned on the term ‘martial law’, saying, “Pakistan mein ab toh mashallah ho gaya (by the grace of God, things in Pakistan are well now).” We in India are fortunate that our courts have not had to resort to the doctrine of necessity. Our politicians and bureaucrats may have in this instance failed, but the Supreme Court has, for the moment, delivered us from mischief. Amen to that, and may our quasi-federal Union long endure as a democratic polity.
Sanjay Hegde is a senior advocate of the Supreme Court
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