Last Wednesday (4 July 2018), a five-judge Constitution Bench of the Supreme Court of India answered a reference made to it by a different bench, which had, in turn, consisted of Justices A K Sikri and R K Agrawal in relation to the powers of the Lieutenant-Governor of Delhi vis-à-vis the Chief Minister of Delhi and the Council of Ministers. The majority judgement of the Constitution Bench was delivered by Chief Justice Dipak Misra, Justice A K Sikri and Justice A M Khanwilkar. Paragraph 277 of the majority judgement encapsulates the conclusions of the long discussion of legal principles that unfolds in the preceding ones. The conclusion (xviii) very clearly states that the Lieutenant-Governor shall be bound to act on the aid and advice of the Chief Minister and the Council of Ministers unless he exercises his powers under Article 239 (4) of the Constitution of India and refers the matter to the President.
The Aam Aadmi Party government led by Arvind Kejriwal, which rules the National Capital Territory of Delhi, has been quick to pat itself on the back and claim victory. On the other hand, Bharatiya Janata Party spokespersons have been at pains to emphasise that the same is no victory and that what has been iterated by the Supreme Court is merely the correct legal position that had been known to everyone. The Chief Minister has gone one step further and threatened contempt-of-court action against those officers who, in his view, are in violation of the orders of the Supreme Court. To my mind, both sides and more so, Kejriwal, are jumping the gun. In this regard, it would be instructive to peruse the relevant observations made in paragraph 278 of the majority judgement. The same reads as follows: “The reference is answered accordingly. Matters be placed before the appropriate regular bench.”
It seems to me under the circumstances that either the Chief Minister of Delhi is unaware of how references to larger benches work in the context of the practice and procedure of the Supreme Court of India, or that he is just trying to score political brownie points. Either way, it is important to set the record straight for laypersons who might otherwise be taken in by his shrill but ill-informed rhetoric.
When an appeal against a judgement of the High Court is filed before the Supreme Court, it is normally listed before a division bench (comprising two judges). In matters where, let us say, there are conflicting decisions of two cognate benches of the Supreme Court, or if there is a split in opinion between the two judges, then such matters are sent before what is known as a ‘Full Bench’ constituted by three judges. If at all during the hearing questions of great Constitutional importance are raised, the matter is ‘referred’ to a Constitution Bench comprising five judges. Sometimes, benches of greater strength are also constituted. However, those eventualities are not germane to this discussion. Once the ‘reference’ is made to the larger bench, the same is answered and the matter is relegated to the regular division bench to proceed with the hearing in light of the observations made by the larger bench.
In other words, the division bench is to then decide if the prayers made by the appellant who has approached the Supreme Court are to be allowed keeping in mind the observations made by the larger bench during the course of the reference. In light of the matter, it is clear that as on date, the appeals filed by Kejriwal have not been allowed, or for that matter, disallowed, and more importantly, no directions have been issued by the Supreme Court in terms of the prayers made by the Government of the National Capital Territory of Delhi. If no directions have been issued by the Supreme Court till date, it only stands to reason that nobody can be held in contempt of non-existent directions.
As iterated earlier, keeping in mind the clear and unambiguous subsisting position, it is rather disingenuous on the part of the Chief Minister of Delhi, who is technically a Constitutional functionary, to be threatening his own officers with contempt of court. Hopefully, the Supreme Court of India will take suo motu notice of what is being attempted here and read the riot act to the Chief Minister of Delhi and his thoroughly anarchist cohorts.
Raghav Awasthi is a lawyer based in Delhi and a member of the Rashtriya Swayamsevak Sangh (RSS).
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