SC rules Lieutenant Governor bound by Delhi’s elected govt but says both parties must work out differences

The fight between the L-G and the elected government, of the Aam Aadmi Party headed by Arvind Kejriwal, has frequently impeded decision making in Delhi.

The administrative crisis in Delhi moved a step closer to resolution with a constitution bench of the Supreme Court ruling on Wednesday that apart from issues pertaining to land, police, and law and order, the elected government of the city-state would have primacy over the Lieutenant Governor (L-G).

Delhi chief minister Arvind Kejriwal with his deputy Manish Sisodia (left) arrive to meet Congress leader and senior advocate P Chidambaram at his residence, in New Delhi on July 04, 2018. (PTI)

An earlier Delhi high court ruling had said that the L-G was the administrative head of Delhi.

The fight between the L-G and the elected government, of the Aam Aadmi Party headed by Arvind Kejriwal, has frequently impeded decision making in Delhi.

Wednesday’s judgment could change that, although the specific disputes between the two will now be decided by a two-judge bench of the apex court, and the home ministry could consider seeking a review of the ruling.

In its ruling, the constitution bench, headed by chief justice of India Dipak Misra, said the L-G is bound by the “aid and advice” of the elected government, but also added that Delhi cannot be accorded complete statehood under the current Constitutional scheme.

Calling on both the constitutional authorities to work together, the five-judge bench interpreted contentious provisions under the Constitution at the heart of the case, Articles 239 AA and 239AB, to say that L-G’s concurrence is not required in every decision taken by the council of ministers – except on issues pertaining to land, police and law.

The Aam Aadmi Party and the Centre interpreted the judgement differently. The former saw it as a victory; the latter said it merely reiterates the special position of Delhi and that the L-G isn’t like other governors. The bench, also comprising justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan gave its verdict on the reference made to it by a bench of two judges to define the L-G’s role under the Constitution.

A two-judge bench of justices AK Sikri and RK Agrawal had on February 15, 2017 requested the CJI to set up a larger bench while hearing the AAP government’s appeal against Delhi high court’s August 4, 2016 verdict declaring L-G as the administrative head of the national capital territory (NCT) and upholding the Union ministry of home’s notifications giving the L-G the power to transfer Delhi government bureaucrats. The HC had also quashed certain decisions taken by the Kejriwal government without the L-G’s concurrence. Wednesday’s judgement partially sets aside HC’s view vis-à-vis L-G’s administrative power.

“It’s a good verdict by the Supreme Court. The L-G and Delhi government have to work harmoniously. Daily squabbles are not good for democracy,” former attorney general Soli Sorabjee said.

The L-G could differ with the decisions of the council of ministers and refer the matter to the President, but this should be only under exceptional circumstances, the court said.

His difference of opinion “should not be exposition of the phenomenon of an obstructionist but reflection of profound sagacity and judiciousness”. A reference by him must be done after application of mind and not mechanically, the court said.

“In the said scheme of things, the L-G should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi, rather he should act as a facilitator.”

The court also upheld Parliament’s power to frame laws for Delhi on subjects falling both under the concurrent and state lists. Executive power of the council of ministers of Delhi spans all subjects in the concurrent list, except land, police and law and order, it said. However, state executive actions must conform to Parliamentary laws under the two lists, meaning thereby that a state law negating central legislation will not hold good. CJI Misra noted there “is no room for absolutism or space for anarchy” and reminded the high constitutional functionaries that the fundamental purpose of administration is to work for the welfare of the people “in ethical manner.”

Giving supremacy to the people of Delhi, the judges said the L-G and council of ministers must make an attempt to settle any point of difference as contemplated under the rules.

Elaborating on the “balanced” federal structure under the constitution, SC said the same mandates that the “Union does not usurp all powers and states enjoy freedom without any unsolicited inference” with respect to matters that exclusively fall within their domain.

The ruling is also likely to have an effect on Puducherry, the only other Union Territory (other than Delhi) to have an elected government and an L-G appointed by the Centre. “It’s a very good judgement. It expands democracy in the union territories. After elections are held, the people’s voice should have meaning,” senior advocate Rakesh Dwivedi said.

(With PTI inputs)