Does Apex Court strengthen the Cooperative federalism In India?

In my view, yes, it does strengthen the spirit of cooperative federalism in India. The Government of India Act, 1935, provided the concept of federalism. It is enshrined under Part XI of the Constitution, where it talks about the relation between Union and State with their legislature and administrative power. A country like India provides the Supreme legislation power to both Union and the State. They both works in their domain, and no one can encroach into the area of one another except expressly provided by any statute. However, in the case of Emergency under Article 352, the law-making power of the states goes into the hands of Parliament, and India becomes the Unitary in nature.

The concept of federalism is sacrosanct to the Indian polity, and it states that the legislature of each state is supreme in its manner. To preserve the spirit of federalism, one shall not interfere with the law-making power of the state. It is imperative not to encroach the legislature's domain by the Governor or Lt. Governor, as they are just the titular head of the state.

Apex Court in the recent judgment of NCT of Delhi v. Union of India held that the Lt. Governor is bound by the aid and advice tendered by the council of minister. Delhi holds the special status in the Constitution by Article 239AA which is, incorporated by the 69th Amendment Act. It provides that there shall be legislative assembly in the union territory of Delhi. It provides the legislative powers extended to State List except for the matters of land, public order, and police and to the Concurrent list of Schedule 7.

The court observed that in Democracy, real power must vest in the elected representatives, and Lt. Governor cannot interfere with every decision of the Delhi Government. Governor can use its discretionary power under rare circumstances, which has been given under 239AA (4) proviso.

Delhi legislative assembly has a special law-making power, and the administrative body cannot curtail it superfluously. However, in the recent past, the Lt. Governor of Delhi was acting critically in the day-to-day affairs of the Delhi Government and stalling the functioning of the elected government, which was quite alarming as it was abrogating the decision-making powers of the government. This issue posed a threat to the federal spirit of our Constitution.

The cooperative federalism talks about the collective responsibility to solve problems. The apex court tried to direct the two separate bodies to work collectively, rather working individually, for the welfare of state and society. The administrative body and the legislative body have to work mutually to establish better Democracy and federalism. The recent pronouncement of the said court held that Lt. Governor is bound by the aid and advice of the council of minister, as they are individually and collectively responsible to the assembly and people. If Lt. Governor impedes the functioning of the elected government, it will malfunction the Democracy and federalism. Through its recent pronouncement, the Supreme Court tries to build harmony between the two bodies so they both can work mutually and effectively.

Thus, it is correct to say that the NCT of Delhi v. Lt. Governor judgment strengthens the cooperative federalism in India.


Himanshu Anand,

Lloyd Law College

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