Delhi power tussle: A big win for Kejriwal as SC says LG doesn't have independent powers

Krishnadas Rajagopal | | Updated on: Dec 06, 2021

Is bound to act on the aid and advice of the Council of Ministers

Noting that there is no room for anarchy or absolutism in a democracy, a five-judge Bench of the Supreme Court on Wednesday unanimously held that the Lieutenant Governor of Delhi is bound by the "aid and advice" of the popularly-elected Arvind Kejriwal-led AAP government and both have to work harmoniously with each other.

Chief Justice of India Dipak Misra, who wrote the opinion for himself, Justices A.K. Sikri and A.M. Khanwilkar, held that except for issues of public order, police and land, the Lieutenant Governor is bound by the "aid and advice of the Kejriwal government, which has the public mandate.

Real authority rests with elected govt

Real authority to take decisions lie in the elected government. This is the meaning of 'aid and advice'. Titular head (LG) has to act in accordance to aid and advice, Justice D.Y. Chandrachud observed in his separate opinion.

Justice Chandrachud concluded that there is no independent authority with the LG to take decisions except in matters under Article 239 or those outside the purview of the NCT government.

Every "trivial difference of opinion" between the LG and the NCT government cannot be referred to the President for a decision. The issues referred should be of substantive or national importance. In this regard, Chief Justice interpreted the phrase "any matter" in Article 239AA(4) as not "every matter".

Elected representatives would be reduced to a cipher if 'any matter' in Art 239AA (4) is interpreted as every matter of governance, Justice Chandrachud agreed.

This Constitutional Court would be doing disservice if an elected govt is reduced to a mere form without substance, Justice Chandrachud wrote.

No concurrence needed in every issue

Chief Justice wrote that a reference to the President was only an exception and not the general rule. In this context, even in case of differences of opinion, the LG and the NCT government should act with constitutional morality and trust for each other. LG cannot act without applying his mind and refer everything to the President.

The NCT government need only to inform the LG of its "well-deliberated" decisions. The government need not obtain his "concurrence" in every issue of day-to-day governance.

Referring to the prolonged spat between the LG and the Kejriwal government on various issues, including freeze on appointments of bureaucrats to mohalla clinic staff to school teachers, the Chief Justice said the spirit of collective responsibility in the Constitution should not be "lost in drama". Constitutional discord should be avoided. There is a need for real discipline and wisdom.

Freeze on government decisions by the LG negates the very concept of "collective responsibility". The governance of the National Capital demands a "meaningful orchestration of democracy" and a "collaborative federal architecture".

Collective responsibility means the government speaking in one voice to the people whose aspirations the govt reflects, Justice Chandrachud observed.

Delhi not a 'state'

Chief Justice Misra however adhered to the nine-judge Bench judgment of the Supreme Court in NDMC versus State of Punjab to conclude that Delhi is not a 'State'. The judgment also held that the LG is not a 'Governor' but only an "administrator in a limited sense".

Real and substantive power lies with the elected representatives in a democracy. They owe responsibility to the legislature, Justice Chandrachud observed, agreeing with Chief Justice that a "mixed balance" has to be struck considering the special status of the Delhi and "fundamental concerns" as Delhi is the National Capital.

Justice Chandrachud said liberty and democracy are fragile concepts which need to be protected at all costs against absolutism.

The judgment came on appeals filed by the NCT government against an August 4, 2016 judgment of the Delhi High Court which had declared that the LG has "complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the LG".



Published on July 04, 2018
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