A win for Kejriwal, but not much changes, say legal experts

The Supreme Court may have restrained the Lieutenant Governor of Delhi from interfering in day-to-day matters of the government, and held that the Centre’s representative would have to act on the “aid and advice” of the Cabinet but Constitutional experts say Chief Minister Arvind Kejriwal is still way short of enjoying complete executive powers like his counterparts in full States.

In emphasising that the “aid and advice” of the Council of Ministers is binding on the Lt Governor, the apex court’s judgment comes as relief to the CM, especially after an August 2016 ruling of the Delhi High Court had held that the L-G was the administrative head of the State.

However, the Delhi CM still has to notify the L-G of “all proposals, agendas and decisions taken”, and he also draws power from a proviso in Article 239AA to refer matters to the President in the event of a difference of opinion between himself and the government.

Officials remain under L-G

“It is a verbal victory. It does not change much in terms of practical functioning,” said lawyer Prashant Bhushan. “Delhi continues to be a Union Territory and the State government has no authority over the civil servants. The proviso to sub-clause(4) of Article 239AA gives powers to the L-G to make a reference to the President on any matter. So, of course, the court has elaborated on the spirit of federalism, but in reality, the State government continues to be fettered.”

The issue that the Supreme Court dealt with on Wednesday pertained to the powers conferred on the Legislative Assembly of the National Capital Territory of Delhi, and the executive power exercised by the NCT’s elected government. While Delhi is still a Union Territory, the State Government enjoys more powers than any other government of a Union Territory through the enactment of the 69th Constitution Amendment Act and insertion of Article 239AA, aimed at eradicating hierarchical strictures that functionally place the Lt Governor in a position superior to the State Cabinet.

Some positives for Kejriwal

Rajiv Dhawan, who also represented the Delhi Government in the matter, agreed that there were “caveats” in the judgment, but underlined that the court had positively restrained the L-G from “flexing muscle in routine functioning”.

“There are caveats that they (the Delhi Government) have to inform the L-G of all decisions. And there is a mechanism, a procedural restraint on the L-G for a reference. He cannot interfere in the day-to-day functioning of the elected government,” Dhawan said.

The court has said that the power given (to the LG) is not to be exercised in a routine manner. It also held that the constitutional scheme with regard to Delhi does not suggest that the decisions taken by the Council of Ministers require any concurrence of the L-G.

Chidambaram hails verdict

Senior counsel and former Home Minister P Chidambaram, who also represented the Delhi Government, hailed the ruling as a “thumping victory” for representative democracy.

“Thumping victory for representative democracy. I welcome the SC judgement in the Delhi Government-versus_LG case. Why did the LG (with a fine track record) allow himself to be misdirected in law by his political masters? Whoever in Central government was responsible for triggering the legal battle should own responsibility, but nobody will,” said Chidambaram on Twitter.

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