18/8/2020 : Daily The Hindu Editorial Notes or Summary for UPSC/IAS ( Arora IAS)

QUESTION: Examine and compare the role of Governor and Lieutenant Governor in States and Union Territories respectively. Also bring out the significance and concerns related to these posts in a federal polity.

 

Topic- JURISDICTIONAL CONFLICT IN THE RUNNING OF DELHI

 

WHAT ?

• Conflict between Lt. Governor and the Delhi Government

 

WHY IN NEWS?

• The issue before the Supreme Court was the jurisdictional(official power) conflicts between the government of NCT and the Union Government and its representative, the Lieutenant Governor.

 

IMPORTANT ARTICLES :

• Article 239 is concerned with administration of Union territories
• Article 239A: Puducherry is a union territory which is governed by Article 239A of the Constitution.

 BACKGROUND:

 

Article 239AA-

• Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment by the Parliament.
• It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly. Delhi was named as ‘National Capital Region (NCT) of Delhi’.
• As per Article 239AA – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters. For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

 

• As per Article 239AA (4), in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision. In the meantime, if the Lt. Governor thinks that the matter is urgent he can take immediate action on his own.

   2018 SC JUDGEMENT:

• The Supreme Court in Government of NCT of Delhi vs. Union of India (2018) decided on the conflicts between the government of NCT and the Union Government and its representative, the Lieutenant Governor.
• It reminds the Lt. Governor what his real functions are.
• It tells the State government that it should remember that Delhi is a special category Union Territory.
• It lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
• It did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government.

 

SETTLED ISSUES AND CLARIFICATION:

• The Supreme Court affirming that the Lt. Governor is bound to act on the aid and advice of council of ministers except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
• The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government.
• If the Lt. Governor thinks that the matter is urgent he can take immediate action on his own.

 

HOW ARTICLE 239 AA(4) MATTERS:

• Lt. Governor can frustrate the efforts of the government, by declaring that there is a difference of opinion on any issue and refer it to the President.
• Refering matter to the President in reality means the Union Home Ministry.
• The Lt. Governor being its representative, it is easier for him to secure a decision in his favour.
• The State government will be totally helpless in such a situation.
• The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point.
• This episode clearly points to the fault lines which still exist in the power equations in the capital’s administrative structure.

 

DELHI RIOT CASES:

• As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government.
• In the meantime the Lt. Governor appointed all the prosecutors whose names were submitted by the Delhi Police and thus the State government’s list was rejected.
• The key question is whether the Lt. Governor can refer a routine administrative matter such as the appointment of prosecutors to the President.
• A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that he cannot. Just take a look at what the Supreme Court says.
• The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor.

 

SHOULD DELHI BE GIVEN COMPLETE STATEHOOD ?

 Arguments in Favour :

• The government also has no say in the issues pertaining to recruitment and conditions of service of officials of IAS, clerks etc. Also, present Delhi government has accused the centre to be meddling in its work and putting barricade through LG.
• The Delhi government has no say over the affairs of DDA.This hinders the effective allocation, use of land and implementing welfare schemes.
• Police: the Delhi government faces problem in proper maintenance of law and order in the state.
• Government of Delhi has no control over the MCD. The government is of the opinion that it hinders in implementing development measures.
• Role of LG:The role and power of LG and Delhi government’s Council of Ministers has always been an area of contestation. The LG has often been accused of delays and disruptions in the work of the elected government.
• Statehood will bring control of administration under one umbrella – the state government, led by the CM and his Council of Ministers and avoid multiplicity of authorities.

 

Arguments against :

• Being the national capital, Delhi hosts various critical infrastructures such as parliament, presidential estates, and embassies. Maintenance of these is extremely important and cannot be handed over to a different entity.
• Granting statehood might lead to various administrative problems especially in law and order which would be detrimental for the national capital.
• Quality of governance might decline due to the impact on finances.
• Security concerns: Security of embassies, parliaments. Further, there is the issue of safety and security of visiting dignitaries from different countries and also head of states. The responsibility of ensuring security to them lies on Centre and state cannot be entrusted with it.
• Control over land is required especially in areas with central government institutions, embassies.

 

CONCLUSION:

 In the Constitutional scheme adopted for the NCT of Delhi Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.When the Court declares the law and requires the constitutional authorities to follow it, they have to act in compliance and not in defiance.

 

WAY FORWARD:

• The elected government in Delhi should be provided a decisive say in the municipal body for a cohesive approach, and proper urban planning.
• The state government should also be given more authority on the police and made accountable in controlling crime.
• Coordinated efforts by the Centre and the Delhi government for effective governance and to uphold public interest.
• The dispute over the powers of L-G of Delhi and elected government of Delhi should be resolved.

 

QUESTION :  A recent case where the apex court issued a contempt notice to the alleged offender for violating the dignity and authority of the office of Chief Justice of India had come into spotlight.. Critically analyse the issue.

 

WHAT IS CRITICISM AND WHAT IS CONTEMPT ?

 

WHAT ?

• Criticism Vs Contempt of Court

 

WHY IN NEWS ?

• A recent order of Supreme Court found senior advocate Prashant Bhushan guilty of contempt for two tweets — one relating to the Chief Justice of India astride an expensive motorcycle and the other that the Supreme Court played a role in the destruction of democracy in India over the last six years.

 CONTEMPT OF COURT :

• Contempt refers to the offence of showing disrespect to dignity or authority of a Court.
• The Contempt of Courts Act, 1971 Act confers upon certain courts power to punish individuals for contempt of themselves as also of subordinate courts.
• Article 129: Power of Supreme Court to punish contempt of itself.
• Article 215: Power of High Courts to punish contempt of itself.
• The Contempt of Courts Act, 1971 gives statutory backing to the idea.
• In India, contempt is classified under two major categories: Civil contempt and Criminal contempt.

 CIVIL CONTEMPT :

• Section 2(b) of Contempt of Courts Act, 1971 defines Civil contempt as:
• Willful disobedience of any judgement, decree, direction, order, writ or other processes of a court or an undertaking given to the court.
• Disobedience or breach must be willful, deliberate and intentional.

 

CRIMINAL CONTEMPT :

• Section 2(c) of Contempt of Courts Act, 1971 defines criminal contempt as a publication of any matter or doing of any other act which-

Scandalises or lowers the authority of any court;

• Prejudices or interferes with the due course of any judicial proceeding;
• Obstructs the administration of justice.

 

PUNISHMENT FOR THESE CONTEMPTS :

• The Supreme Court and High Courts can punish for simple imprisonment for a term up to six months or with fine up to Rs. 2,000 or with both.
• Supreme Court in 1991 stated that it has the power to punish for contempt for itself as well as of High courts, Subordinate courts and Tribunals of India.
• Under Section 10 of the Contempt of Courts Act of 1971, High Courts have special powers to punish contempt of subordinate courts.
• The idea behind criminal contempt is to punish the contemner who has, by his insolent behaviour, dishonoured the court.

 

CAN ONE NEVER VOICE ANY CRITICISM OF THE JUDICIARY ?

Reasonable restrictions:

• Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2).
• The SC in C.K. Daphtary v. O.P. Gupta (1971) held that the existing law of criminal contempt is one such reasonable restriction.

 Thin line separating criticism and contempt:

• The above provisions do not mean that one cannot express one’s ire against the judiciary for fear of contempt.
• The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious.
• If the comments are made against the judge as an individual, the Court would consider whether the comment seeks to interfere with the judge’s administration or is simply in the nature of libel or defamation.

 No protection against individual comments :

• Criminal contempt does not seek to afford protection to judges from statements which they may be exposed to as individuals.
• Such statements would only leave the individual liable for defamation.

 Statements affecting the administration of justice :

• Statements which affect the administration of justice or functioning of courts amount to criminal contempt since the public perception of the judiciary plays a vital role in the rule of law.
• An attack on a judge in his or her official capacity denigrates the judiciary as a whole and the law of criminal contempt would come down upon such a person unless it is a fair critique of judgment.

 

PREVIOUS RULINGS :

1. S.Mugolkar v. Unknown (1978):

• SC held that judiciary cannot be immune from fair criticism.
• The contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts.

2. Indirect Tax Practitioners’ Association v. R.K. Jain (2010):

• SC held that Truth is also a defence in matters of criminal contempt if it is bona fide and made in the public interest.

 

CONCERNS :

• Contempt of Court has been used previously to provide restriction to the Freedom of speech and expression under Article 19 (Right to freedom of opinion and expression).
• The law provides sweeping discretionary powers to the judges to rule on what they perceive as contempt against themselves.
• On a specific action, two judges might have a different viewpoint on whether this action can be considered as contempt of court or not.
• As per Section 9 of Contempt of Courts, 1971 Act, the scope of what is to be treated as contempt cannot be expanded beyond what is provided for in the Act.
• However, when contempt itself is held to mean anything that scandalises the courts, it is so open-ended that it makes invoking the contempt law quite easy.

 

CONCLUSION :

• Whether a comment would constitute criminal contempt or not depends entirely on the facts and circumstances of each case.
• Tweets or remarks by conscientious citizens certainly do not affect the dignity of the Indian judiciary, to quote Lord Denning “that must rest on surer foundations”.

 

WAY FORWARD :

• The right of the citizens to free speech and expression under Article 19(1)(a) should be treated as primary, and the power of contempt should be subordinate.
• Judiciary should balance two conflicting principles, i.e. freedom of expression, and fair and fearless justice.
• The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function.
• It’s time for the legislature to take steps to amend the Contempt of Court Act and objectively define the confines of contempt law and its applicability.
• Establishing a review mechanism, as a safeguard against judicial tyranny and to remove conflict of interest, by instituting an independent panel to verify the actions which extract contempt law.