Lieutenant Governor of Delhi and the Supreme Court Judgment
The Supreme Court on 4th July 2018 delivered an authoritative judgement in the much awaited case Government of NCT of Delhi v/s Union of India and others. Why was this such an anticipated judgment? Since it was pending before the 5 judge Constitutional bench of the Supreme Court since 2016 regarding the role and powers of Lieutenant Governor of Delhi in relation to the elected government and their respective spheres of authority.
Background of the Case
But alas! Politics in India is such that even the Services subject, which was earlier with the elected government of Delhi, was transferred to the reserved list to be governed by the Lieutenant Governor by a notification of the Union ministry of Home Affairs in May 2015. The result of this decision was such that even routine transfers and appointments of category III and IV employees including Peons and Clerks could not be carried out by the elected government but only as per directions of the non-elected Lieutenant Governor (LG) who was answerable to his political bosses in the Union government.
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The Delhi government challenged this transfer of Services subject and other matters relating to interference of Lieutenant Governor in the day to day working of the government before the Delhi High Court. The all important question of statehood of Delhi was also to be decided by the Delhi High Court. The Delhi High Court ruled in 2016 largely in favour of the Lieutenant Governor on the ground that Delhi being a Union Territory and not a state, the Lieutenant Governor was the administrator of Delhi and was not just a titular head of the National Capital Region.
Further the Delhi High Court upheld the transfer of the Services subject by the Union government to the reserved list and it further ruled that the LG was not bound by the aid and advise of the elected government of Delhi in exception to the norms by which Governor’s of states were bound by. It was this 2016 judgment of Delhi High Court which was challenged by the Delhi government of AAP in the present case before the Supreme Court.
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Importance of Article 239AA in the Present Case of Delhi
At the heart of the matter is Article 239AA of the Constitution that contains special provisions with respect to Delhi. This Article empowers the President of India to appoint an Administrator for Delhi region (National Capital Territory or NCT) who is called the Lieutenant Governor (LG). Usually the LG is bound by the aid and advise of the Council of Ministers headed by the Chief Minister (just like Governor of a state is bound by the aid and advice of the CoM headed by the CM) in routine matters except reserved subjects, including, Land, Police, Public Order and Services.
But Clause 4 of the Article 239AA states that in case if difference of opinion between the CoM and the LG, the LG can refer any matter to the President for decision and pending decision by the President (read the Union government) the LG is competent to take action on the matter if it is an urgent matter calling urgent action.
This means the LG has a virtual veto over the administrative affairs of Delhi not only with respect to the four reserved subjects but also in any matter where he chooses to disagree with the government of the day. And we know the fact that the manner in which the (Lieutenant) Governor is appointed and the fact that he has no security of tenure implies that he has to act as per the wishes of his political masters, which is what was witnessed in Delhi over the past several years.
Crux of the Supreme Court Ruling
Now let us analyse what are the main highlights of the Supreme Court’s ruling in the case involving the Government of Delhi and the Lieutenant Governor.
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 Dipak Mishra
This ruling of the Supreme Court effectively reversed the 2016 judgment of the Delhi High Court and held that the LG is bound by the aid and advise of the Delhi government (like other governor’s are in their respective states) except in matters relating to the reserved subjects of Police, Public Order and Land.
Under present Constitutional scheme, NCT (National Capital Territory) Delhi can’t be state.
The Supreme Court rejected the plea taken by the AAP government of Delhi for its full statehood and not just a Union Territory.
LG must not mechanically refer every matter to the president. Must apply his mind before doing so.
The LG should not be an obstructionist in the working of the Delhi government, he should apply his mind while referring a matter to the President for his consideration and any matter in Article 239AA does not mean every matter.
LG has to respect the democratically elected government. LG must work harmoniously with the council of ministers and not resist. There is a need for discussion, in case of a difference, to sustain a representative form of government.
The Supreme Court restored the primacy of the elected representatives (Delhi government) over the appointed administrator (LG) and also set out the ground rules for effective cooperation between the Constitutional authorities in the interest of the people of Delhi. It stressed that harmony and not discord should prevail between the two and there is need for discussion in case of difference of opinion to sort out such differences.
Did the Supreme Court Clearly Spell Out that Services Shall Not Come Under the Reserved List?
No. It did not. It did not explicitly state that the Services subject shall be removed from the reserved list of subjects to be governed by the LG and would be transferred back to the Delhi government. Rather it ruled that the Delhi Cabinet is empowered with those subjects for which the Assembly has legislative power.
Under the Constitution this implies all subjects that fall under the State List and the Concurrent List of the 7th Schedule except the 3 reserved subjects of Police, Public Order and Land. This implies that the Delhi Legislative Assembly (or Delhi government) always had the power over the Services subject but vide an notification of the Union government in May 2015 the Services subject was transferred to the reserved list along with the other 3 subjects to be governed by the LG.
The Supreme Court in its July judgment in the present AAP government case of Delhi has not quashed this May 2015 notification of the Union Home ministry and so this means that technically the Services department (which decides the appointments, postings and transfers of employees) continues to function under the LG and not under the Delhi government. So this all important issue of the Services subject will continue to remain a bone of contention between the Delhi government and the LG until the Supreme Court expressly clarifies this legal hurdle.
Summary of the Supreme Court Judgment in the Delhi AAP Government LG Case
This was a magnum opus as far as Supreme Court verdicts are concerned. The judgments of the 5 judges who gave three separate ran into a total of 535 pages. The deliberations in the present case wrapped up in December 2017 and the top court reserved its judgment since then and it took almost 7 months to deliver its verdict after in-depth deliberations.
The Supreme Court in its judgment delved into the questions of Constitutional morality and it quoted Dr Ambedkar’s famous quote:
However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.
DR B.R Ambedkar
It stressed upon the need for harmonious relationship between the LG and the elected government of Delhi but in the end it restored the primacy of the elected government over the non-elected administrator (LG). It also reinforced the status of NCT of Delhi as a Union Territory and not that of a state (which was demanded by the Delhi AAP government). This implies that the real winner in this case are the people of National Capital Region of Delhi who had suffered the most in the past 3-4 years due to the ongoing power tussle between two Constitutional authorities which hopefully will now cease in the interest of the welfare of people of the Delhi whom they serve.
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