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Elected government is the boss of Delhi: SC warns, the Lieutenant Governor cannot function as 'an obstructionist'

By FnF Correspondent | PUBLISHED: 04, Jul 2018, 18:05 pm IST | UPDATED: 04, Jul 2018, 18:41 pm IST

Elected government is the boss of Delhi: SC warns, the Lieutenant Governor cannot function as 'an obstructionist' New Delhi: The Lieutenant Governor does not have independent decision-making powers in Delhi and the real power must lie with the elected government, the Supreme Court ruled today in a spectacular legal victory for Arvind Kejriwal's Aam Aadmi Party (AAP) in the long-running fight over who's the boss in the national capital.

"The states should enjoy freedom without unsolicited interference from the centre...popular will cannot be allowed to lose its purpose," the court said, asserting that the Lt Governor must not be obstructionist.

"A big victory for people of Delhi", said Mr Kejriwal, whose three-year rule in Delhi has been marked by protests and dharnas, most recently on sofas at Lt Governor Anil Baijal's home last month. "There is no room for absolutism and there is no room for anarchism also," the court said.

In a gigantic win for Arvind Kejriwal, the Supreme Court today ruled that his government is the final authority in Delhi, with five judges unanimously agreeing that "real power lies with the elected government of Delhi"

Mr Kejriwal, who was elected Chief Minister of Delhi in 2015, had gone to court, arguing that his administration was repeatedly impugned upon by the Lieutenant Governor, who acts as the representative of the centre in Delhi.

The Delhi High Court ruled against him last year. The top court today has over-turned that verdict.

Mr Kejriwal contends that Prime Minister Narendra Modi, who led the BJP's campaign in Delhi in 2015 only to be dramatically defeated by the Aam Aadmi Party, is exacting revenge by using the office of the Lieutenant Governor to prevent Mr Kejriwal's government from taking any decisions. Bureaucrats' appointments are cancelled, files are not cleared, and basic decision-making is obstructed, he claims.

The Supreme Court today said that the elected government is the boss of Delhi and warned that the Lieutenant Governor cannot function as "an obstructionist";  it said "there is no room for absolutism and there is no room for anarchism also."

In that observation lies a cautionary note for Mr Kejriwal, a regular practitioner of dharnas or protests - the most recent was convened last month on the Lieutenant Governor's sofa and lasted nine days - who is often accused by critics and opponents of resorting to sit-ins when he does not get his way and blaming administrative shortcomings on his protracted turf war with the centre.

Mr Kejriwal, whose Aam Aadmi Party was formed just six years ago, won all but three seats in Delhi in the last election it contested in the capital. His rash of run-ins with the centre have crystallized his party's demand for turning Delhi into a state instead of its unique status as the national capital where three key areas - law and order, land and police - are governed by the centre instead of by its own government.
The Congress party said the BJP and the AAP should now restart the development of the national capital.

"Since the apex court has clarified about the powers in Delhi, we hope that the development, which has been stalled ever since the Congress was voted out of power over four years ago, will start again," said Delhi Congress chief Ajay Maken.

The Supreme Court said the LG needs to work harmoniously with the Council of Ministers and an attempt should be made to settle the difference of opinion with discussions, the apex court said.

In his separate verdict, concurring with the rest of the judges, Justice Chandrachud said the real power vests with Council of Ministers and the LG must bear in mind that it is not he but the Council of Ministers that will take the decisions.

The judge also said the LG must realise that the Council of Ministers is answerable to the people.

"There is no independent authority vested with LG to take independent decisions," he said.

Justice Bhushan, who also penned a separate but concurring verdict, said all routine matters do not require consonance of the LG.

The tussle between the LG and Kejriwal reached a peak earlier this year when Chief Secretary Anshu Prakash made it clear that he is answerable only to the LG, which resulted in a confrontation at the Secretariat and Prakash was slapped by an AAP MLA.

Subsequently, Delhi bureaucrats went on a virtual strike, refusing to attend meetings called by their ministers. Kejriwal raised the stakes by staging a sit-in in the the visitors' lounge at the LG's residence for several days before a compromise was hammered out.

The AAP government claims that the LG has repeatedly thrown "hurdles" in the way of the functioning of an elected government through a "wilful interpretation" of the Constitution.

"Whether it was the issue of installation of CCTV cameras, ration scheme, transfer and posting (of officials), interference was being created," Sisodia, the deputy chief minister, said.

 "What the court has said that people are supreme, elected government will be supreme, and LG has no power to act arbitrarily ('LG ke paas manmani karne ki power nahn hai')," he added.

The "historic mandate" given to a new party was for development, welfare of the people and to facilitate resumption of long-pending works, he said.

Soon after the verdict, Kejriwal tweeted he will hold a Cabinet meeting later today.

"Called a meeting of all Cabinet Ministers at 4 pm at my residence to discuss critical projects of public importance which were blocked so far," Kejriwal tweeted.

Mr Kejriwal has confronted two Lieutenant Governors so far  - Najeeb Jung and now Anil Baijal.

Here are the 10 latest developments:
  1.     "The cabinet must convey all decisions to the Lieutenant Governor but his concurrence is not required in all matters," the court said, making it clear that the Lt Governor is not the boss.
  2.     The top court emphasised that except for anything related to land, police and public order, the Lt Governor has no independent decision-making powers under the constitution.
  3.     "The Lt Governor is an administrator in a limited sense and is not the Governor. He is bound by the advice of cabinet advice in matters other than those exempted," the court said.
  4.     Reading out the verdict, Chief Justice of India Dipak Misra said the Lt Governor needs to work harmoniously with the Delhi government.
  5.     In 2016, AAP went to the Supreme Court against the High Court's order that the Lt Governor is the administrative boss of Delhi. The top court, disagreeing with the high court today, said the Lt Governor "should not act in a mechanical manner and stall decisions of the Delhi cabinet".
  6.     Supreme Court's landmark ruling comes after Mr Kejriwal spent nine days protesting in a visitors' room at the Lt Governor Anil Baijal's house to get his attention.
  7.     AAP wanted Mr Baijal to step in and end an officers' boycott that started after Delhi's top bureaucrat, Chief Secretary Anshu Prakash, alleged in February that he had been attacked by AAP lawmakers at a late night meeting at Mr Kejriwal's home.
  8.     After the officers agreed to talks, Mr Kejriwal ended the protest but started a signature campaign for full statehood for Delhi, a demand that was pushed by the BJP until it took power at the centre.
  9.     The tussle started months after the AAP swept to power in Delhi in 2015, winning 67 of 70 seats and reducing the BJP to only three. AAP alleges that the BJP-led central government has since been exacting revenge and using the Lt Governor to block every decision taken by the Kejriwal government.
  10.     Days after AAP came to power, the centre dropped a rule that required the Lt Governor to consult the elected government on every decision relating to police, public order and bureaucratic appointments.
Excerpts from the judgment by CJI Dipak Misra, Justice AK Sikri and Justice AM Khanwilkar

-The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics.

-With the insertion of Article 239AA by virtue of the Sixty-ninth Amendment, the Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.

-The meaning of ‘aid and advise’ employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA. The Lieutenant Governor has not been entrusted with any independent decision making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.

-The words “any matter” employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and
morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

-The difference of opinion between the Lieutenant Governor 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

-The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts.

-Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realization of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.

Excerpts from Justice YV Chandrachud’s judgment

-While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union territory, thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi;

-Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Lieutenant Governor must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President;

-The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital Territory. Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union. Given the complexities of administration, and the unforeseen situations which may occur in future, it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances  arranting recourse to the proviso. In deciding as to whether the proviso should be invoked the Lieutenant Governor shall abide by the principles which have been indicated in the body of this judgment.

Excerpts from Justice Ashok Bhushan’s judgment

-The “aid and advice” given by Council of Ministers as referred to in subclause (4) of Article 239AA is binding on the LG unless he decides to exercise his power given in proviso to subclause (2) of Article 239AA.

-The Legislative Assembly of NCTD being representing the views of elected representatives, their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President.

-The power given in proviso to subclause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the LG on valid reasons after due consideration, when it becomes necessary to safeguard the interest of the Union Territory.

-For the Executive decisions taken by the Council of Ministers/Ministers of GNCTD, proviso to subclause (4) gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between decisions of the Ministers and the LG, but the Constitutional Scheme does not suggest that the decisions by the Council of Ministers/Ministers require any concurrence of the LG.

-The scheme as delineated by 1991 Act and 1993 Rules clearly indicates that LG has to be kept informed of all proposals, agendas and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through so as to enable him to exercise the powers as conceded to him under proviso to subclause (4) as well as under 1991 Act and 1993 Rules. The purpose of communication is not to obtain concurrence of LG.

-From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.