Responsibility without power

That the government in Delhi is elected yet circumscribed points to a constitutional anomaly. Apex court should correct it.

Written by P D T Achary | Updated: December 1, 2017 4:55 am
Delhi governor, Delhi new governor,, Anil Baijal, Arvind Kejriwal Lieutenant Governor Anil Baijal, Chief Minister Arvind Kejriwal, in New Delhi during an event. Praveen Khanna

The problem of jurisdictional conflicts between Delhi’s elected government and the lieutenant governor (LG) is attributable to the conundrum called Article 239 AA of the Indian Constitution. Incorporated in the Constitution in 1992, it creates a “special” constitutional set up for Delhi. A popularly elected assembly, a council of ministers responsible to the assembly, a certain demarcation of responsibilities between the LG and the council of ministers, a method for resolving the difference of opinion between the council of ministers and the LG are the main features of this arrangement.

This special set up worked well — at least on the surface — with the chief minister and the LG hiding their dislike for each other successfully. Moreover, the same party held office at the Centre as well as in Delhi for much of the time. But things changed when AAP formed the governmentin the city. With the BJP at the Centre, the contradictions in the constitutional arrangements began to surface. The Delhi High Court judgment declaring that the LG is the only decision-making authority in the National Capital Territory was the proverbial last straw on the camel’s back.

Presently, the Supreme Court is looking into the powers of the elected government and those of the LG. There are two main issues: Whether the elected government is the final authority in respect of matters assigned to it by the Constitution, and whether the LG has primacy when a difference of opinion arises between him and his council of ministers on matters of governance.

Article 239 AA, though claimed to be a special provision meant for Delhi, in fact, contains most of the provisions of the Government of Union Territory Act, 1963. The difference is in the demarcation of responsibilities between the elected government and Delhi’s LG. As per Article 239 AA (3) (a), the Delhi assembly can legislate on all those matters listed in the State List and Concurrent List as are applicable to union territories, excluding public order, police and land. These three items are reserved for the LG. Under Article 239 AA (4), the council of ministers has the executive power to execute all matters in respect of which the assembly has the power to make laws.

The vesting of all powers in the LG in respect of matters which come within the jurisdiction of the assembly is not in conformity with the scheme of Article 239 AA. The main reason is that Delhi, although a union territory, is not administered by the president acting through the LG under Article 239. It is, in fact, administered under Article 239 AA. This point becomes clear when we look at Article 239 AB (a) which says “if the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239 AA,” the president can dismiss the council of ministers.

So, the council of ministers is responsible for Delhi’s administration and if it fails in its functions, it will be removed by the president. But the council of ministers cannot be removed for the breakdown of the constitutional machinery unless they are vested with the power to take final decisions on matters of administration. Further, Article 239 AA (b) says that the council of ministers shall be collectively responsible to the assembly. But if the council of ministers is not the final decision maker what will it be accountable for? The president intervenes in Delhi’s administration on a report from the LG saying that the administration cannot be carried on. If the LG administers himself, how can he report to the president that he has failed? It is also absurd to think that the council of ministers will be removed for the failure of the LG.

The other issue relates to the right of the LG to disagree with the council of ministers on any matter and refer it to the president. A LG, motivated by political considerations, could disagree with many decisions of elected government and refer them to the president, which means the central government. A rival political party running the government at the Centre would be the surest guarantee that the LG will disagree with most of the decisions of the government of Delhi, bringing governance to a standstill. Such a provision in the proviso to Clause (4) of Article 239 AA virtually nullifies the executive power vested in the council of ministers by Clause (4). It cannot be the intention of the lawmakers to take away the powers vested in the elected government and establish the primacy of the LG. After all, the purpose of the constitutional amendment was to provide a democratic government for Delhi and not to enhance the powers of the LG.

Clause (4) deals with the exercise of power by the LG on the aid and advice of the council of ministers as well as the exercise of discretionary powers without such aid and advice. When these powers are exercised, there is a likelihood of conflicts between the council of ministers and the LG on the scope of the matters in the discretionary list and the other list. It is only reasonable to refer such matters to a higher authority like the president. But in regard to other matters of governance, the council of ministers should be left free to exercise the executive power as contemplated in Clause (4) of Article 239 AA.

The Supreme Court has limited the scope of many words and expressions used in statutes by the process of reading down. In an important constitutional law such as the 10th Schedule of the Constitution, the apex court limited the scope of “Whip’ (Kihoto Hollohan v. Zachillu). Since the lawmakers retained the confusion in the text of Article 239 AA (4) it may be a fit case for the Supreme Court to read down the proviso to mean that the LG would refer to the president only matters concerning conflict of opinion on items reserved for the LG and those assigned to the assembly.

The writer is former secretary general, Lok Sabha

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