Judicial Evasion, Judicial Vagueness, and Judicial Revisionism: A Study of the NCT of Delhi vs Union of India Judgment(s)
19 Pages Posted: 21 Jul 2020
Date Written: June 27, 2020
Through a study of two recent important judgments of the Indian Supreme Court – arising out of the same dispute – this paper will illustrate the Court’s role in strengthening the central executive, at the cost of other constitutional authorities in India’s bicameral Parliamentary system. The dispute turned upon the division of powers between the central government, and the government of the National Capital Territory of Delhi (NCT), governed by Article 239AA of the Indian Constitution. The case involved critical questions of representative democracy and the federal structure, and reached the Supreme Court at a time when two opposing parties were in government at the centre and in the NCT, and had a publicly acrimonious relationship with each other. The paper will discuss how (a) first, the Supreme Court delayed hearing the case for many months (despite the fact that the dispute involved consequences for both governments on a daily basis), allowing a status quo in which the central government called the shots (thanks to a favourable High Court judgment). This technique – where the Court favours one party to a litigation simply by not deciding a case – is called judicial evasion; (b) second, when a five-judge bench of the Court finally heard and decided the case, despite laying down the principles that governed the relationship between the centre and the NCT government, refused to demarcate their respective spheres of competence with any specificity. Instead, the Court left day-to-day disputes to be resolved through “political statesmanship.” This created a situation where the Court’s judgment could be interpreted by political actors in the way that they chose. This technique – where abstract judicial pronouncements leave wide interpretive scope for more powerful political actors to exploit – is called judicial vagueness; (c) third, when a smaller bench of the Court was called upon to deliver judgment on specific disputes, the judges handed down a split verdict that was at open odds with the judgment of the five-judge bench (despite the fact that two of the judges had sat on that very bench!). This technique – where the Court seemingly departs from its own binding precedent to favour the executive in a specific case, is called judicial revisionism. A combination of judicial evasion, judicial vagueness, and judicial revisionism – it will be shown – created a situation that, contrary to the constitutional scheme, effectively left the elected government of the NCT at the mercy of the central executive. In the final part of this paper, I will take other contemporary examples to show how the Supreme Court has regularly invoked a combination of judicial evasion, judicial vagueness, and judicial revisionism to empower the central government, without ever seeming to give an actual judgment in those terms.
Keywords: Indian constitutional law, separation of powers, federalism
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