Lt Guv isn't the boss. Real power with Kejriwal Govt: Supreme Court

In a massive victory for Delhi’s ruling Aam Aadmi Party (AAP) over its power tussle with the Centre, the Supreme Court Wednesday unanimously held that the Lieutenant-Governor (LG) is an administrative head in limited sense; the real powers of governance of the National Capital Territory (NCT) lies with the elected representatives.

In a verdict entailing huge political significance, a Constitution Bench headed by Chief Justice Dipak Misra stated that LG Anil Baijal cannot interfere in each and every decision of the Arvind Kejriwal-led government.

In three separate but concurring judgements, the Bench comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, held that the LG was bound by the “aid and advice” of the Council of Minister in all areas except land, police as well as law and order.

“LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advise of the NCT Government in areas other than those exempted”, CJI Misra said, reading out the judgment. 

The apex court verdict reversed the 2016 Delhi High Court judgment, which had held that the LG was the “administrative head” of Delhi and was “not bound by the aid and advise of the Delhi Council of Ministers”.

Deliberating on the significance of ‘aid and advice', the bench said “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 LG, then the concept of collective responsibility would stand negated”.

“The difference of opinion between the LG and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist,” read the judgment.

Observing that the LG must work harmoniously with the government, the court stressed that he cannot mechanically refer all matters to President without application of mind.

It said though, all decisions of the Government have to be communicated to the LG, there is no need to obtain his concurrence in all matters.

This does not mean that the Council of Ministers is bound by the LG. There is no space for anarchy and absolutism in our Constitution, the Bench said.

“The Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co-existence and interdependence so as to avoid any possible constitutional discord,” the judgment said.

“A conjoint reading of clauses (3) (a) and (4) of Article 239 AA divulges that the executive power of the Government of NCT of Delhi 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 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 court elaborated.

The CJI also specified that the NCT of Delhi does not have the status of a 'state'.

The status of NCT of Delhi is sui generis, a class apart, and the status of the LG 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, the court said.

In his separate but concurring judgment, Justice Chandrachud held that the authority to take decisions lies with the elected government and said that a balance between the Delhi and the Central Governments was essential in view of the special status of Delhi.

Justice Ashok Bhushan, in his separate but concurring judgment, said opinion of the elected government must be respected and concurrence of LG must be obtained in all matters.

The Arguments

The key question in the matter was surrounding whether Delhi is a Union Territory, with the LG being its sole administrator, or is it a special state, with the LG bound by the aid and advice of the council of ministers?

During the hearings, the Delhi government represented by P Chidambaram, Gopal Subhramanium and Indira Jaising, among others, argued that the LG as a titular head has superseding powers only in limited matters and cannot paralyse governance by delaying decision making.

It also had contended that the LG was required to step in only in the case of an emergency.

On the other hand, the Centre, represented by Additional Solicitor General Maninder Singh, argued that the Union has the supremacy so far as Delhi Legislative Assembly is concerned.

He further argued that Delhi, being a Union territory, cannot be in the list of states under the Constitution and it would be undemocratic if the Legislative Assembly of Delhi has the same power as the Union of India.

Who said what?

Chief Minister Arvind Kejriwal, who has been engaged in a bitter turf battle with Baijal and his predecessor Najeeb Jung, hailed the court verdict saying it was a big victory for democracy.

Among the first to congratulate Kejriwal on the court verdict was former Union Minister Yashwant Sinha, who said the judgment was a victory for the people of Delhi, for democracy and for the Constitution.

The judgment can be read here:

https://supremecourtofindia.nic.in/supremecourt/2016/29357/29357_2016_Judgement_04-Jul-2018.pdf