Administering Delhi: Real power with the elected government, SC rules

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New Delhi | Published: July 5, 2018 5:40:20 AM

Says LG lacks independent power, can’t be obstructionist; adds Delhi not a pure ‘state’.

supreme court, sc, aap, arvind kejriwal, delhiThe apex court said that barring three issues, including land and law and order, the Delhi government has the power to legislate and govern on all other issues. (IE)

In a victory for the Arvind Kejriwal-led Aam Aadmi Party (AAP) government in Delhi, a five-judge Constitution bench of the Supreme Court on Wednesday clarified that the “real power lies with the elected government of Delhi” and the lieutenant governor (LG) is not superior to the elected chief minister and can’t act independently of the state government.

It further said that the LG is bound to act on the aid and advice of the council of ministers and can’t act as an “obstructionist”.

However, it ruled that the NCT of Delhi does not have the status of a “state” but “it is a class apart”.

LG Anil Baijal and his predecessor Najeeb Jung and the Delhi government have been locked in a bitter power tussle ever since the AAP swept to power in Delhi in 2015. The AAP government had alleged that his administration was repeatedly impugned upon by the LG, who acted as the representative of the Centre in Delhi. The situation has recently reached a flashpoint when chief minister Kejriwal and three of his cabinet colleagues resorted to a days-long sit-in protest inside the LG’s office, demanding that latter order IAS officers posted in the Delhi government to call off an alleged strike.

A five-judge bench led by Chief Justice Dipak Misra in three separate but concurring judgments said no independent authority was vested with the LG to take independent decisions. All decisions of the council of ministers, elected representatives of the people of Delhi, must be communicated to the LG but that does not mean the latter’s concurrence is required, the court stated. “There is no room for absolutism and there is no room for anarchism also,” it stated.

“The states should enjoy freedom without unsolicited interference from the Centre… Popular will cannot be allowed to lose its purpose,” the SC said.

“The LG should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. The difference of opinion between the LG and the Council of Ministers should have a sound rationale…,” according to the judgment.

“The Lt Governor is an administrator in a limited sense and is not the Governor. He is bound by the advice of cabinet advice in matters other than those exempted,” the court said, adding the difference of opinion should be settled “harmoniously” with discussions. The LG’s special power — that of referring matters to the President — needs to be exercised in exceptional circumstances and not routinely, said the Supreme Court in its 535-page ruling.

The LG can only refer differences of opinion under Article 239AA (4) to the President only in “exceptional matters”. This is an exception not the general rule, it said, adding that he has to act in the spirit of constitutional trust and morality.

The apex court added that barring three issues, including land and law and order, the Delhi government has the power to legislate and govern on all other issues.

The role of the LG is not to supplant the constitutional role of the NCT government but to help. He need to bother only about issues of national importance, justice DY Chandrachud said, in a separate but concurring verdict. “In discharging his constitutional role, the LG has to be conscious of the fact that the Council of Ministers which tenders aid and advice is elected to serve the people and represents both the aspirations and responsibilities of democracy. Neither the Constitution nor the enabling legislation…contemplate that every decision of the executive government must receive the prior concurrence of the LG before it can be implemented,” he stated.

Justice Ashok Bhushan, who also wrote a separate but concurring verdict, said all routine matters do not require consonance of the LG. The ruling came on a batch of appeals filed by Kejriwal’s government challenging the Delhi High Court’s order holding the LG as the administrative head of the national capital.

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