“LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advise of NCT Government in areas other than those exempted”:CJI.
The Supreme Court delineated the boundaries of power between the Lieutenant-Governor and Delhi Government by stating that the LG cannot interfere in each and every decision of the Delhi Government, and that the LG is bound by the aid and advise of the council of ministers of Delhi Government, except in matters of land, police and public order. The verdict was given by a Constitution Bench comprising Chief Justice Dipak Misra, Justice A.K. Sikri, Justice A.M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan. The SC reversed the decision of the Delhi High Court which had held that LG was the “administrative head” of Delhi NCT, who was not bound by the aid and advise of the Delhi Council of Ministers.
“LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advise of NCT Government in areas other than those exempted”, stated the judgment authored by CJI, with concurrence Justice Sikri and Justice Khanwilkar
The power of LG to differ from the Delhi Government and make reference to President was only with respect to exceptional matters under Article 239AA(4) of the Constitution of India. The exceptional matters pertain to land, police and public order. Although decisions of the Government have to be communicated to the LG, there is no need to obtain the concurrence of LG in all matters. LG must work Harmoniously With Government. The judgment also emphasised that LG cannot mechanically refer all matters to President without application of mind.
In a separate but concurring judgment, Justice Chandrachud stated that real authority to take decisions lie with the elected government and that titular head has to act as per the aid and advice of the elected government. “A balance between the State of NCT of Delhi and the Centre is required in the light of the special status of Delhi”, Justice Chandrachud said.
Justice Ashok Bhushan, in his separate but concurring judgment, said that interpretation of Constitution must be on the basis of need of the time. The opinion of the elected government must be respected. Constitution did not provide that concurrence of LG must be obtained in all matters, Justice Bhushan stated.
Seven months after it reserved its judgment on December 6 last year, the Supreme Court put to rest the power tussle between the Delhi government, with Chief Minister Arvind Kejriwal at its helm, and the Centre, wielding authority through the Lieutenant Governor.
The verdict of the constitution bench of Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D. Y. Chandrachud and Ashok Bhushan came on the Kejriwal government’s challenge to the 2016 Delhi High Court ruling, which declared the LG as the ‘administrative head’, not bound by the aid and advice of the Council of Ministers.
The stand of the Delhi Government
The Legal eagles representing the Delhi Government before the five-judge bench were senior advocates Gopal Subramaniam, P Chidambaram, Indira Jaising, Rajeev Dhavan and Shekhar Naphade.
The following are the excerpts from their arguments-
GOPAL SUBRAMANIUM- The LG is a titular head who has superseding powers only in matters related to police, public order and land. The functionary Cannot summon all files or paralyse governance by delaying decision making.
PChidambaram - The LG is not the administrative head in most matters; he is not a “Viceroy”, but simply an agent of the President whose powers depend on the pleasure of the President.
INDIRA JAISING- The Delhi Government should be allowed to function smoothly, especially in the field of social welfare subjects. ‘Has the Constitution of India or any law passed by Parliament declared Delhi as the capital of India? There was no reference in the or in any law that Delhi was the capital of India’
Rajeev Dhavan- The Delhi Government has crucial powers. The LG shall step in only in the case of emergency.
Main points argued by the Centre
The Centre was represented by ASG Maninder Singh, whose primary submissions were as quoted below-
‘The national capital belongs to the citizens of India. They (Delhi government) say we are an elected government. Union of India is also an elected government. It (Union) has the supremacy so far as Delhi Legislative Assembly is concerned’
‘Delhi was accorded special status among the union territories but it has not got entry as a state in the states’ list. A union territory remains a union territory even if it has a legislative assembly’
‘A union territory cannot be in the list of states under the Constitution. It would be undemocratic to say that the legislative assembly of Delhi will have the same power as the Union of India has’
‘They are admitting that it (Delhi) is not a state but claim power and privileges of a state. How is it possible? If it is not a state then it cannot claim privileges of a state. It can never become a state and its government cannot be said to be a state government. There is no exclusive executive power given to them’
‘Delhi government was empowered to take care of daily utilities of the national capital but the real administrative powers were vested with the Centre and the President’
‘Out of 650 files received by the Lt Governor in the last three years, there was a difference of opinion on only three cases. Refuting allegations levelled by bevy of senior lawyers appearing for the the NCT government that the Centre is stalling day-to-day decision-making with the LG sitting on files, the Centre informed the bench that there was a difference of opinion in only three odd cases’
‘Representatives of the Delhi government were present in all meetings convened by the L-G and the allegation that the latter was responsible for it not being able to perform its functions was baseless’
‘Delhi government could not claim powers in violation of a constitutional scheme that set out a vertical division of power between the city government and Centre for administering the capital’
The Delhi High Court judgment
The Delhi High Court had on August 4, 2016 declared that Lieutenant Governor is the administrative head of National Capital Territory of Delhi and he is not required to act on the advice of the Delhi Cabinet. The High Court Bench headed by Chief Justice G.Rohini had dismissed a batch of Petitions by the Delhi AAP Government challenging the powers of Lieutenant Governor.
After hearing the lengthy arguments by both sides, the Bench had reached inter alia the following conclusions-
(i) On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi.
(ii) Article 239 of the Constitution continues to be applicable to NCT of Delhi and insertion of Article 239AA has not diluted the application of Article 239 in any manner.
(iii) The contention of the Government of NCT of Delhi that the Lt. Governor of NCT of Delhi is bound to act only on the aid and advice of the Council of Ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution is without substance and cannot be accepted.
(iv) It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993.
(v) The matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi. Therefore, the direction in the impugned Notification S.O.1368(E) dated 21.05.2015 that the Lt. Governor of the NCT of Delhi shall in respect of matters connected with ‘Services’ exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional.
(vi) The direction in the impugned Notification S.O.1896(E) dated 23.07.2014 as reiterated in the Notification S.O.1368(E) dated 21.05.2015 that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference since the power is traceable to Entry 2 (Police) of List II of the Seventh Schedule to the Constitution in respect of which the Legislative Assembly of NCTD has no power to make laws.
(vii) Notification No.F.5/DUV/Tpt./4/7/2015/9386-9393 dated 11.08.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry for inquiring into all aspects of the award of work related to grant of CNG Fitness Certificates in the Transport Department, Government of NCT of Delhi is illegal since the same was issued without seeking the views/concurrence of the Lt. Governor as provided under Rule 10 and Rule 23 read with Chapter V of Transaction of Business Rules, 1993.
(viii) For the same reasons, the Notification No.F.01/66/2015/DOV/15274- 15281 dated 22.12.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry to inquire into the allegations regarding irregularities in the functioning of Delhi and District Cricket Association is also declared as illegal.
(ix) The appointment of Nominee Directors of Government of NCT of Delhi on Board of BSES Rajdhani Power Limited, BSES Yamuna Power Limited and Tata Power Delhi Distribution Limited by the Delhi Power Company Limited on the basis of the recommendations of the Chief Minister of Delhi without communicating the decision of the Chief Minister to the Lt. Governor of NCT of Delhi for his views is illegal.
(x) The proceedings of the Government of NCT of Delhi, Department of Power No.F.11(58)/2010/Power/1856 dated 12.06.2015 issuing policy directions to the Delhi Electricity Regulatory Commission regarding disruption in electricity supply to consumers and compensation payable in respect thereof are illegal and unconstitutional since such policy directions cannot be issued without communicating to the Lt. Governor of NCT of Delhi for his views.