The Supreme Court Tuesday observed that the position of Delhi was different from other Union Territories and that the “Chief Minister is obliged to communicate all decisions to the Lieutenant Governor (L-G)”.
Hearing arguments for the second day on a petition filed by the AAP government, challenging the Delhi High Court verdict confirming the L-G as the administrative head of the National Capital Territory (NCT), a bench headed by Chief Justice of India Dipak Misra said that “unlike other states, if you (Delhi government) take a policy decision, then you have to intimate the Lieutenant Governor (L-G). You are bound to intimate the L-G, but you cannot say that the L-G has to concur.”
The bench added that “the governor can also call for explanation if he feels that the decision taken, which on the face of it may look innocuous, is blatantly incorrect or wrong. You cannot curtail his powers. You need to intimate him and he has the jurisdiction to call for the files. And this does not mean that he needs to concur with you… You can take executive action unless it is manifestly absurd to invite L-G’s intervention.”
Appearing for the AAP government, senior counsel Gopal Subramanium told the bench, which also included Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, that he “conceded the legislative competence of the Parliament (to make laws for the NCT). However, that is not to take away what is allowed under Article 239AA (special provisions with respect to Delhi), but only co-extensive.”
“Provision in Article 239(1) that President will administer Union Territories through administrator is abrogated in relation to the Union Territory of Delhi,” the counsel said. Justice Chandrachud did not seem to agree and said “it is not entirely abrogated because appointment of L-G is also traced back to 239(1).” Stressing that the Constitutional provisions called for a harmonious construction, Subramanium said primacy to the L-G “is contemplated for egregious situations, not day-to-day functioning.”
To this, the CJI wondered if he was trying to say that the LG’s interference must not be on trivial issues or on matters of day-to-day functioning, but must have some sanctity. He added, “Subject to what the other side argues… we can’t carve out the areas of difference. We can only say the range, (in) what kind of differences (can L-G intervene).”
CJI Misra added that “there may be situations where concurrence may not be possible… It has to be situation oriented.” The bench also pointed to the rules for conduct of the government’s business and said it can be done in two ways: first, decisions can be enforced forthwith by simply informing the L-G, the second requires prior communication to the L-G before a decision is taken.
The court said that in case of difference of opinion with regard to a law made by the Delhi Assembly, the L-G has to refer it to the President for a decision and that pending decision, the L-G can pass an interim order if necessary.