State vs L-G: SC reminds Delhi of its power limitations

“In urgent matters, it is the L-G who is given primacy... The executive power of the government of Delhi was not exclusive to the executive power of the Centre,” the bench said

Written by Ananthakrishnan G | New Delhi | Updated: November 3, 2017 2:37:28 am
arvind kejriwal, anil baijal, kejriwal versus baijal, kejriwal LG, supreme court, CJI dipak misra, aap government, delhi, latest news, indian express Lieutenant Governor Anil Baijal, Chief Minister Arvind Kejriwal, in New Delhi  (Praveen Khanna/file)

The Supreme Court Thursday reminded the Arvind Kejriwal government that there were limitations to its powers under the Constitution, but added that in matters where the Lieutenant Governor (L-G) had differences with it, he could not sit on files. Instead, he was required to forward them to the President within a “reasonable time”, the court said.

“In urgent matters, it is the L-G who is given primacy… The executive power of the government of Delhi was not exclusive to the executive power of the Centre,” a five-judge Constitution bench, headed by Chief Justice of India Dipak Misra, observed while hearing the AAP government’s plea challenging a Delhi High Court order confirming the L-G as the administrative head of the National Capital Territory (NCT).

Appearing for the state government, Senior Counsel Gopal Subramanium contended that its day-to-day working was being hindered as civil servants feel they don’t have to report to the ministers but only to the L-G. “The L-G feels he has inherent power to veto. As a result, the aid and advice of the Council of Ministers is neutralised… Even civil servants do not recognise the ministers as heads of departments. As a result no decision can be taken,” he told the bench, which also included Justice A K Sikri, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan.

Subramanium also sought to know if this “is contemplated under Article 239AA”. “In the absence of a law, who has the power — you or the L-G?” asked the CJI, adding “the language of the Constitution says L-G’s decision is final”. Subaramanium replied that the provisions must be interpreted in a way that it serves the object. “Public order in Delhi, police or land cannot be subject of executive power of government of Delhi”, pointed out Justice Chandrachud.

The counsel added that even the decisions on extending welfare measures were stuck because of the L-G’s stance and wondered “how can a government function”. A “constructive interpretation will not defeat the purposes of 239AA,” he added.

Justice Chandrachud wondered if some restrictions can be read into the proviso dealing with the powers of the L-G or whether it can be restricted to some cases. He added that even when there were differences between the L-G and state government, “the L-G cannot be sitting on a file. He is under Constitutional obligation to refer it to President, which means he has to send that in a reasonable time”. The court added that he must also record his differences in writing.

Justice Chandrachud pointed out that under Article 239 (1), it was the President who appoints the administrator for Delhi and this administrator was designated as L-G, “which means the administration of Delhi is by the President in the name of the administrator”. He added that “the substantive power to appoint the administrator is under Article 239 (which deals with the administration of Union Territories and President’s power in this regard) and not under Article 239AA.”

Subramanium contended that “though the genesis of appointment is in 239, the measure is in 239AA”. He sought to stress that the object of 239AA would not have been to create dual governments. “Can you contemplate two governments,” he asked. Justice Bhushan countered this saying the L-G was entitled to have his views. “He can differ and have his own view,” the judge said. “That cannot be to stultify functioning of democratically elected government,” argued Subramanium, adding that a harmonious interpretation was needed. “Whatever power you have, it has to flow from 239AA,” said the CJI.

The counsel replied, “Can it extend to anything I do in respect of governance under the Constitution…Can full concurrence be insisted upon?”
Justice Chandrachud added that “Article 239AA(4) (which speaks about a Council of Ministers to aid and advise the L-G) may be a recognition of Article 73, which says that the executive powers of the Union extends to all matters in respect to which the Parliament can make law”. The CJI added that “when the Constitution-makers included these provisions in the document, they probably had in mind the question of Constitutional collegiality”.

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