In a landmark verdict Wednesday that came as a shot in the arm for the Arvind Kejriwal-led AAP government in its tussle with Lieutenant Governor Anil Baijal for control of Delhi, a five-judge Constitution Bench of the Supreme Court ruled that decisions of the elected government of Delhi do not require the concurrence of the Lt Governor who only needs to be informed.
Calling for Constitutional pragmatism and underlining the clear separation of powers, the bench of Chief Justice of India Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, in three separate yet concurring orders, made it clear that “the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
It also said that “at the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the Constitutional position that the NCT of Delhi is not a State”.
EXPLAINED | Delhi power tussle: Between the court’s lines
“It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of the Parliament to treat Delhi government as a representative form of government… the Lieutenant Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi, rather he should act as a facilitator,” the bench said.
The judges ruled that “the scheme that has been conceptualised by the insertion of Articles 239AA and 239AB read with the provisions of the GNCTD (Government of National Capital Territory of Delhi) Act, 1991 and the corresponding TBR (Transaction of Business Rules), 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers”.
It said that the “the terminology ‘send a copy thereof to the Lieutenant Governor’, ‘forwarded to the Lieutenant Governor’, ‘submitted to the Lieutenant Governor’ and ‘cause to be furnished to the Lieutenant Governor’ employed in the said rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required”.
The bench’s reminder that the country’s Constitution was a “constructive” one and that there was no room for “anarchy” and “absolutism” was read by Kejriwal critics as a message for the AAP government. The Constitution Bench was answering a reference from a two-judge bench which had been hearing a batch of petitions filed by the Delhi government, challenging the Delhi High Court decision that upheld certain central notifications regarding the administration of the NCT, as well as petitions filed by the Centre.
The Lt Governor, stated the main order written by CJI Misra and Justices Sikri and Khanwilkar, “is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA. The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.”
The judges upheld the powers of the Lt Governor under Article 239AA (4) to differ with the decisions of the Council of Ministers and refer the matter to the President. But “the difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness”.
Rejecting the argument that “any matter” in Article 239AA (4) cannot mean “every matter”, the bench said the Lt Governor’s power had to be “exercised in exceptional circumstances keeping in mind the standards of Constitutional trust and morality, the principle of collaborative federalism and Constitutional balance, the concept of Constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government”.
The judges made it clear that the Lt Governor “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”. Their order underlined that the 1991 GNCTD Act and TBR of 1993 provide for discussions, deliberations and dialogue to resolve differences.
“We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the Constitutionally bestowed responsibilities are shared by them.”
Justice Chandrachud, writing a separate concurring judgment, elaborated on this. He said before the Lt Governor decides to make a reference to the President, he “must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President”.
Justice Bhushan, also writing a separate judgment, agreed with the view that the Lt Governor has to be kept informed of all decisions, but this does not mean that the decisions require his concurrence. On the separation of powers, the Bench said that under Article 239AA(3)(a), Parliament has the power to make laws for the NCT with respect to any matter in the State List and Concurrent List. The Delhi Legislative Assembly also has the power to make laws on all subjects in the Concurrent List and all but three subjects in the State List — namely, public order, police and land. It clarified that the Centre will have exclusive power to make laws in respect of these three subjects but “in respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi”.
A conjoint reading of clauses (3)(a) and (4) of Article 239AA shows that the executive power of the Delhi Government is co-extensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but the three excluded subjects. “However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament,” the court ruled.
On what matters should be referred to the President, Justice Chandrachud said “while it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union Territory, thereby resulting in the negation of the Constitutional structure adopted for the governance of Delhi”.
The Bench also said that the proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to NCT’s affairs. “Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union.”