Delhi Power Tussle

Controversy : Proviso to Article 239AA (4), which mandates that in case of a difference of opinion between the LG and the Council of Ministers, the former has to refer the issue to the President. In the meanwhile, while that decision is pending before the President, the LG, if the matter is urgent, can use his discretion to take immediate action.
Delhi HC says:
  • Lieutenant Governor is its “administrative head” 
  • HC also set aside the AAP government’s contention that the L-G was supposed to act “only on the aid and advice of the Ministers”
  • The court also quashed several notifications issued by Chief Minister Arvind Kejriwal after returning to power in February 2015, terming them “illegal” as they were issued “without concurrence of the L-G.”
  • It declared the LG to have “complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the LG.”
  • LG has special powers greater than the President, greater than other Governors of States.
  • The HC had upheld the LG’s power not only over the police, land and public order but also in “services”. The judgment had effectively shrunk the Delhi Cabinet’s girth.
What does Delhi Government say?
  • It does not seek full Statehood for Delhi but more administrative powers, contending that a “democratically elected government cannot be subservient to the Lieutenant-Governor”.
  • It wants the Supreme Court to lay down the law on whether the LG can unilaterally administer the National Capital without being bound by the “aid and advice” of the elected government
SC says:
  • The Supreme Court has agreed to lay down the law on whether the Lieutenant Governor (LG) of Delhi can unilaterally administer the National Capital without being bound by the “aid and advice” of the elected government.
  • The Supreme Court has refused to stay the HC judgment, despite submissions by Delhi government that the verdict “affects all future governments and all future relationships between the Centre and the State”.
  • The Lieutenant Governor (LG) of Delhi cannot stultify proposals or schemes forwarded by the Council of Ministers to him by simply sitting on them.
  • The LG is bound to pass the difference of opinions [between the LG and the Delhi Council of Ministers] to the President for early resolution.
  • The 1996 judgment by the Supreme Court in North Delhi Municipal Corporation versus State of Punjab clearly terms Delhi as a Union Territory in a class by itself.
  • The judgment observed that “the Union Territory of Delhi is in a class by itself but is certainly not a State”.
  • Union territories are in different stages of evolution.
  • Union Territories are governed by Article 246 (4) of the constitution notwithstanding the differences in their respective set-ups.
  • The 69th Amendment of the Constitution in 1992 gave the National Capital of Delhi special status with its own democratically elected government and legislative assembly.
  • Sub-section (4) of Article 239AA mandates that a Council of Ministers shall aid and advice the LG in his functions regarding laws made by the Legislative Assembly.
Various opinions:
  • The Constitution Bench, led by Chief Justice Dipak Misra, prima facie said that the Delhi government’s ability to “aid and advice” the LG is limited to subjects other than public order, police and land in the National Capital. It said that the proviso to Article 239AA (4), on plain reading, seems to give primacy to the LG.
  • Justice Ashok Bhushan remarked that the LG is entitled to take a different view and is not bound by the aid and advice of the Delhi Cabinet.
Counter arguments:
  • Subramanium alleged that the LG has misused the discretion in this proviso to block governance to such an extent that decisions from appointment of teachers in municipal schools to opening of mohalla clinics have been pending for over a year.
  • The Chief Secretary and other officers, without applying their minds to the various welfare proposals and schemes, simply forward the files to the LG, where it remains indeterminately.
  • The “extraordinary discretion” of the LG is confined to special circumstances and not in everything.
Related Notes:
  • Laxmikanth chapter on Union territories

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