Debate over primacy of power, governance reaches apex court
Constitutional collegiality, observed the Chief Justice of India (CJI) on Thursday hearing an appeal preferred by the AAP Government in Delhi challenging a Delhi High Court order confirming the lieutenant-Governor (l-G) as the administrative head of the National Capital Territory, was probably on the mind of the Constitution-makers when they included provisions applicable to the exercise of administrative power in various territories of India. As politics has played out over the past couple of years in Delhi, where the Supreme Court held the l-G has clearly been given primacy under Article 239AA of the Constitution, forget collegiality even civility has sometimes been absent in the interactions between the duly elected State government led by Arvind Kejriwal and the Delhi l-G appointed by the President of India. While the hearing before a five-judge apex court Bench headed by the CJI continues, four points of interest have emerged in the Delhi Government's ongoing battle with the BJP-led Central Government over the latter's alleged interference in day-to-day governance issues through its appointee, the lieutenant Governor. The first, was the observation by the Bench that in case of differences of opinion between the State government and l-G the administrative head's differences with the executive should be recorded in writing; secondly, the iteration that in urgent matters the l-G has the authority to issue any necessary orders; thirdly, the question of whether some restrictions could be read into the provision dealing with the powers of the l-G or if it can be restricted in some cases; and fourthly, that even when there is a difference of opinion between the Government and the l-G, the latter cannot sit on files as he is under a Constitutional obligation to refer the matter to the President which means that it is implicit s/he must do so in reasonable time.
It is, however, pretty clear that regardless of the political hue of the governments in power in the State and at the Centre, maintenance of public order and security, police and land will not for the foreseeable future, if ever, be handed over to the domain of the State Government given Delhi's unique status as Capital of the Indian Union. Everybody and their uncle knows this, and it is incumbent on all political parties contesting future Delhi Assembly elections to be upfront about this fact with the electorate.
The Delhi Government does have a point, however, when it says that for day-to-day governance issues it is the elected executive which is responsible and will be held accountable by the people. On the flip side, given the Constitutional scheme of things, ego if any must be put aside and the Government must work through the lieutenant-Governor who does prima facie have primacy of power if that is what providing good governance to the residents of the Capital requires. It would certainly help if the l-G were to go the extra mile in this regard because, naturally, any elected government and especially one with the kind of unprecedented mandate gained by AAP, would chaff at having to do so. But the reality is that's the only game in town for now.