Ruling on the AAP vs Centre power struggle, the Supreme Court observed that the L-G could not interfere in every decision.
New Delhi: The Supreme Court Wednesday defined the role of the lieutenant governor of Delhi, and ruled that he cannot “interfere in every decision of the elected government”.
In an unanimous verdict — one written by the CJI for himself and justices AK Sikri and AM Khanwilkar and two concurring opinions by justices DY Chandrachud and Ashok Bushan — the court also underlined the fact that the status of the L-G was different from that of state governors.
Immediately after the judgment, Delhi chief minister Arvind Kejriwal’s media adviser Nagendar Sharma tweeted, “Supreme court of India restores Delhi elected govt’s powers.”
The judgment followed a three-year power struggle between the government and the Centre – represented by the L-G’s office – over who holds the reins to the national capital.
The CJI-led bench reiterated Article 239AA to say the L-G was bound by the aid and advice of the council of ministers except on issues relating to police, land and public order.
“There is no room for absolutism and no room for anarchy,” CJI Misra added.
“The lieutenant governor must work harmoniously work with elected government. The L-G is the administrative head but he can’t act as an obstructionist,” he said.
On 6 December 2017, a five-judge Constitution Bench reserved its judgment on a batch of appeals filed by the Aam Aadmi Party-led state government against a Delhi High Court order, issued 4 August 2016, that declared the L-G the boss of Delhi.
At the heart of the AAP’s petitions was the argument that an elected government could not exist without any real power. The Constitution, it argued, could not give the L-G powers to “stultify daily governance by sitting over files”.
The trial in the top court
For over a month, starting in November 2017, the Constitution bench, led by Chief Justice of India Dipak Misra, heard arguments pitched by a battery of lawyers that represented the Centre and the state government.
On 2 November, the bench, also comprising Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, observed that the AAP-led state government would need the L-G’s nod to function.
The apex court had further indicated at the time that, according to the Constitution, the final nod lay with the L-G’s office while the elected state governments would have to operate within the framework laid out.
“Land, police and public order isn’t under you,” the bench had then remarked. The SC had further said that Article 239AA of the Constitution, which appeared to give the LG more powers, was unique to the national capital, unlike the administration in other union territories.
Where Article 239 of the Constitution constitutes Delhi as a union territory, Article 239AA gives it special powers, which simply means that while Delhi remains a union territory, it is under the control of the L-G.
What AAP said
Several senior advocates that included Gopal Subramanium, Indira Jaising, P. Chidambaram and Rajeev Dhavan, among others, represented the state.
Subramanium argued that the state was “not questioning parliamentary supremacy; but an elected government cannot be sans any power”.
What the Centre said
Additional solicitor general (ASG) Maninder Singh said, “They are admitting 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 here is no exclusive executive power given to them.”
Several arguments were made, but the essence of the Centre’s case was that while the state government was empowered to handle day-to-day affairs, the real administrative powers were vested with the Centre and the President.
What the HC said
The HC had said that its decision was taken on the basis of Articles 239, 239AA, Greater National Capital Territory (GNCT) Act and Conduct of Business rules.
“Article 239 of the Constitution continues to be applicable to NCT of Delhi and insertion of article 239AA has not diluted the article in anyway,” a bench comprising Delhi High Court Chief Justice (CJ) G. Rohini and Justice Jayanth Nath had said.
The HC had then dismissed the state government’s notification dated 21 May 2015, which challenged a central government notification that gave absolute powers to the L-G to appoint bureaucrats in Delhi.