LG Is Bound By Advice of Elected Delhi Government, Says SC on AAP Vs Centre Case

The Wire
July 04,2018
The Wire Staff

The Supreme Court delivered its verdict on who among the Delhi government and the lieutenant-governor has supremacy when it comes to making administrative decisions for the national capital. All five judges of the apex court constitution bench held that the LG must respect the decisions made by the elected government, and act on the aid and advice of the council of ministers.
Celebrating the court’s verdict, Delhi chief minister Arvind Kejriwal said it was a “big victory for the people of Delhi” and a “big victory for democracy”.

The court produced three separate judgments but concurrent – one authored by Chief Justice Dipak Misra and Justices A.K. Sikri and A.M. Khanwilar, one by Justice D.Y. Chandrachud and one by Justice Ashok Bhushan, Bar and Bench reported. The court said that the constitution mandates a federal balance between the state and the Centre, and the Centre cannot usurp powers on areas within the dominion of state. But Delhi is different, it is not a state, the court said.
While saying that the LG is not in the same class as a governor of a state, the bench ruled that he cannot act independently and is bound by the advice of the elected council of ministers. CJI Misra said while reading out his judgment that there is no room for either ‘absolutism’ or ‘anarchy’ in the constitution.

CJI Misra also added that the LG’s concurrence is not required on all matters, LiveLaw reported. The exercise of   establishing a democratic and representative form of government for the NCT of Delhi by giving it special status would be futile if the elected government is not able to usher in policies and laws, he added.
The CJI also held that the Delhi has the power to make laws with respect to any matters enumerated in the state list and the concurrent list. He made it clear that the control of the Centre is confined to three areas – land, police and public order – and there cannot be any attempt on the part of the Union government to seize all control. The Centre must allow the concepts of pragmatic federalism and federal balance to prevail by giving the NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the constitution, the CJI continued.
In his judgment, Justice Chandrachud said that while the LG is the administrative head of Delhi, he cannot act as an ‘obstructionist’. In democratic governance, he added, real power and substantive accountability are vested in elected representatives, Bar and Bench reported. The proviso to Article 239AA(4) (which talks about the LG’s approval) has to be construed so that “any matter” is not ‘every trivial matter’, otherwise governance in Delhi will come to a standstill, Justice Chandrachud continued. He also said that the LG must bear in mind that it is not he but the council of ministers who take substantive decisions.
While reading out the third judgment, Justice Bhushan said that the interpretation of constitutional provisions should be based on the needs of the time. Given that, he said, the LG’s powers under Article 239AA should be “exercised in matters of constitutional relevance”.

The matter was heard by a five-judge constitution bench led by Chief Justice Dipak Misra and comprising Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan.
The apex court had reserved its judgment in the matter in December 2017 on a bunch of petitions on the issue that had been grouped together. The Aam Aadmi Party has alleged that the Centre is using the governor’s office to interfere with its government’s functioning. The elected government, the party said, had been left without any powers and the LG could not have the right to “stultify daily governance by sitting over files”.
In November, the bench had said that while the constitutional scheme was prima facie tilted in favour of the lieutenant governor in the union territory of Delhi, the top official cannot “sit on files” for an unreasonable amount of time. He must refer matters where he disagrees with the state government to the president, said the court.
In August 2016, the Delhi high court had ruled on the matter in favour of the LG, saying the constitution made the governor the administrative head of Delhi who enjoyed wide discretionary powers. The AAP government appealed this decision in the Supreme Court.


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