Govt.Of Delhi Vs Lt.Governor : Summary of Supreme Court Judgment

"If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated"- CJI

In a significant judgment, the Constitution Bench of the Supreme Court held that the Lieutenant-General of the Delhi had to act as per the aid and advise of the Council of Ministers of Delhi Government except in matters of land, police and public order. It held that the LG cannot interfere in each and every decision of the Delhi Government. 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. The Court also held that Delhi was not a 'State', and occupied a special status under the Constitution.

There were three separate and concurring judgments. CJI Dipak Misra wrote judgment for himself and Justice A K Sikri and Justice A M Khanwilkar. Justice D Y Chandrachud and Justice Ashok Bhushan wrote separate but concurring judgments. Here is the summary of the judgments.

Chief Justice of India Justice Dipak Misra (for himself and Justice A K Sikri and Justice A M Khanwilkar)

• Constitution has to be interpreted in such a manner to enhance its democratic spirit. The paradigm of representative participation by engagement of citizenry should not be annihilated by interpretation.


• In a democratic republic, collective is the supreme and the elected representatives reflects the will of the collective.


• Spirit of constitutional morality negates the concentration of power in the hands of a few.


• The decisions by Constitutional functionaries must have normative reasonability and acceptability.


• Principles of Constitutional governances have the twin principles of fiduciary nature of public power and system of checks and balances


• Parliamentary form of government is based on principle of collective responsibility of the cabinet. If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated


• Our Constitution   contemplates   a   meaningful orchestration of federalism and democracy to put in place an egalitarian social order,


• The Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co­existence and interdependence so as to avoid any possible constitutional discord.


• The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State   Governments.   As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain.


• The status of NCT of Delhi is sui generis, a class apart, and 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.


• With the insertion of Article 239AA by virtue of the Sixty­ninth   Amendment,   the   Parliament envisaged a representative form of Government for the   NCT   of   Delhi.   The   said   provision   intends   to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters   falling   within   the   State   List   and   the Concurrent   List,   barring   those   excepted,   and   a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.


• The interpretative dissection of Article 239AA(3) (a) reveals that the Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List.  At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the   Concurrent   List   and   all,   but   three   excluded subjects, in the State List


• A conjoint reading of clauses (3)(a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co­extensive 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   three   excluded subjects,   in   the   State   List.   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 the Parliament.


• The Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the   Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi.


• The meaning of ‘aid and advise’ employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi 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 decision­making 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 words   “any matter” employed in the proviso to clause   (4)   of  Article  239AA cannot be inferred to mean “every matter”. The power of the Lieutenant   Governor   under   the   said   proviso represents the exception and not the general rule which   has   to   be   exercised   in   exceptional circumstances by the Lieutenant Governor 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 Lieutenant 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.


• 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.


• The Lieutenant Governor,   being   the   Administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers

 Justice D Y Chandrachud

• The constitutional scheme indicates several features in relation to the NCT which have resulted in the conferment of a constitutional status which falls short of the trappings of full statehood


• The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance


• An elected government reflects in a democracy, the aspirations of the people who vote to elect their representatives. The elected representatives carry the responsibility of giving expression to the political will of the electorate. In a democratic form of government, real power must subsist in the elected arms of the State.


• The relationship between the Council of Ministers and the titular head of State is governed by the over-arching consideration that real power and substantive accountability is vested in the elected representatives of the people


• The principle of aid and advice is in a constitutional sense intended to strengthen the constitutional value of representative government and of governance which is accountable and responsive to the electorate.


• The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government.


• The executive power of the government of NCT is co-extensive with the legislative power. The principle of aid and advice under clause 4 of Article 239AA extends to areas where the Lieutenant Governor exercises functions in relation to matters where the legislative assembly has the power to make laws. In consequence, those matters on which the legislative assembly does not have the power to enact legislation are not governed by the principle of aid and advice. Similarly, the Lieutenant Governor is not subject to aid and advice on matters where he is required to exercise his own discretion by or under any law


• 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


• Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Lieutenant Governor 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 Ashok Bhushan

• The interpretation   of   the   Constitution   has   to   be purposive taking into consideration the need of time and Constitutional principles


• The Parliament has power to make laws for NCTD   in respect of any of the matters enumerated in State List and Concurrent List. The Legislative Assembly of NCTD has also legislative power with respect to matters enumerated in the State List (except excepted entries) and in the Concurrent List.


• The “aid and advice” given by Council of Ministers as referred to in   sub­clause   (4)   of   Article   239AA   is binding on the   LG unless he decides to exercise his power given in proviso to sub­clause   (2)   of   Article 239AA.


• The Legislative Assembly of NCTD being representing the views of elected representatives, their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President


• The power given in proviso to sub­clause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the   LG on valid reasons after due consideration when it becomes necessary to safeguard the interest of the Union Territory.


• LG has to be kept informed of all proposals, agendas and decisions taken.   The purpose of communication of all decisions is to keep him posted with the administration of   Delhi.


• From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.