NCT Govt supreme in legislative and administrative matters, but land, police, law & order in l-G’s domain, rules SC
The Supreme Court on Wednesday settled the long-standing dispute over governance of Delhi, giving supremacy to the Arvind Kejriwal Government in legislative and administrative matters while keeping land, police and law & order out of its domain.
The SC ruled that the lieutenant-Governor will abide by the aid and advice of the council of Ministers, and cannot act as an “obstructionist.”
The State Government will also not be required to seek the l-G’s approval in exercise of its executive powers.
While summarily rejecting the demand to grant Statehood to Delhi, the SC advised the l-G that “he should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi, rather he should act as a facilitator”.
Finding it hard to conceive how an elected Government in Delhi can function when the decision-making power rests with the l-G , the SC demarcated the executive power of the Centre and the Delhi Government. The SC delineated a limited role to the l-G, who had assumed significant powers by overruling or referring the decisions taken by the State Government to the President citing difference of opinion.
A five-judge Constitution Bench interpreted Constitution Article 239AA that provides for a Delhi legislative Assembly but added in the proviso that where there is difference of opinion between the l-G and the Council of Ministers on “any matter”, a reference shall be made to the President whose decision will be final.
It was this proviso that had become the bone of contention between the BJP-led Government at Centre and the AAP Government in Delhi.
The Bench of Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud, and Ashok Bhushan through three separate opinions arrived at the same finding that “any” matter cannot mean “every” matter. It said, “Insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi legislative Assembly has power to legislate for the NCT of Delhi.”
The verdict has come as a huge boost for the Kejriwal Government in Delhi which suffered a reversal in the Delhi High Court that had held the l-G to be the administrative head of Delhi. The AAP Government employed top notch lawyers Rajeev Dhavan, Gopal Subramanium, P Chidambaram, Shekhar Naphade, and Indira Jaising to firm up the case before the SC. The Centre and the l-G were represented by Additional Solicitor General (ASG) Maninder Singh.
The Bench in one voice declared that by no stretch of imagination, Delhi can be accorded the status of a State in view of the 1997 decision in NDMC vs State of Punjab. But the special status of Delhi as a Union Territory with a mandatory Assembly led the court to hold that except subjects of land, police and law and order which fall in the domain of the l-G, the Delhi Government will enjoy full executive power, along with legislative power over any other issue related to Delhi.
If a file pertaining to any such decision is sent to the l-G, he will be bound by the aid and advice of the Council of Ministers of Delhi Government, the apex court said.
While it will still be open for the l-G to differ with the elected Government, the CJI in his separate opinion (with Justices Sikri and Khanwilkar) said, “The l-G need not in a mechanical manner, refer every decision of his Ministers to the President...The difference of opinion between the l-G 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.”
Justice Chandrachud, in his separate concurring opinion said, “The role of l-G is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on status of Delhi as national Capital is not bypassed.” He added that difference of opinion cannot be on every “trifling” matter as this would result in bringing the Delhi administration to a standstill.
The judge highlighted areas where the l-G will be justified to refer a decision to the President. This will include cases where act of the NCTD is likely to impede or prejudice exercise of Union’s executive power, to ensure compliance with Parliamentary law or provisions of Constitution, issues of policy having bearing on the position of NCT as a national Capital, or matters which implicate financial concerns of the Union Government. The difference of opinion is to be substantial and not contrived or trifling matter of disagreement, he added.
The Court stressed that the constitutional spirit required functionaries in higher office to adopt a harmonious approach. Although Transaction of Business Rules 1993 requires the l-G to be informed of all decisions, the Bench clarified that this will not mean “concurrence” of the l-G.
While the fight began to prove who is superior, the Court refused to be dragged into it as it said, “Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy.” The judges emphasised that through dialogue and discussion the constitutional functionaries must ensure welfare of people and avoid difference of opinion. “Neither of the authorities should feel that they have been lionized. They should feel they are serving the constitutional norms, values and concepts.”
After laying down the law under Article 239AA, the Bench directed listing of individual petitions challenging individual notifications of the Centre and the Delhi Government regarding services, vigilance, etc before a regular bench, to be decided by the CJI.