Lt. Governor v. NCT: Why the Battle for Delhi could be far from over

Lt. Governor v. NCT: Why the Battle for Delhi could be far from over

The Supreme Court today delivered its much awaited judgment in the tussle between the Lt. Governor and the Government of NCT Delhi.

In a marked departure from the judgment of the Delhi High Court which was in appeal, the Supreme Court held that the Lt. Governor is bound by the aid and advice of the Council of Ministers and cannot act independently.

In three separate but concurring, verbose judgments, the Constitution Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan apparently ruled in favour of the Aam Aadmi Party (AAP) which is currently in power in Delhi.

With the judgment seemingly in favour of the Delhi government, Chief Minister Arvind Kejriwal enthusiastically tweeted,

“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.”

However, amidst all the praise surrounding the judgment, what is critical is that the verdict might not have addressed a critical issue which could still be the bone of contention in future litigation – the exact ambit of the proviso to Article 239AA(4) of the Constitution.

And this might prove to be a stumbling block for the Delhi government whenever it is not ruled by the party which is in power at the Centre.

The critical proviso

The case pertains to the interpretation of Article 239AA of the Constitution of India. Article 239AA provides for special provisions with respect to the National Capital.

Sub-clause 4 of the said Article provides that the Council of Ministers shall aid and advise the Lt. Governor. It reads as follows:

“There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.”

However, the proviso states that in case the Lt. Governor has a difference of opinion on any matter, he can refer it to the President, whose decision in this regard shall be binding.

Article 239AA provides for special provisions with respect to the National Capital
Article 239AA provides for special provisions with respect to the National Capital

The proviso reads as follows:

“Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”

Thus, this proviso effectively vests in the Lt. Governor the power to stall and overturn the actions/decisions taken by the Delhi government with respect to any matter by referring it to the President.

While both the judgments – that of the Delhi High Court and the Supreme Court – dealt with myriad issues including the status of Delhi (whether it is a Union Territory or State) and the scope of the term “aid and advice”, it is the interpretation of this proviso alone which would hold the key when it comes to the battle for Delhi.

The Delhi High Court judgment

In a 194-page judgment, then Chief Justice G Rohini and Justice Jayant Nath had held that Delhi is a Union Territory, and that the Lt. Governor of Delhi is not bound to act only on the “aid and advice” of the Delhi Legislative Assembly.

Justice G Rohini and Justice Jayant Nath
Justice G Rohini and Justice Jayant Nath

For arriving at this conclusion, the Delhi High Court relied on the proviso to Article 239AA (4). The Court held that it is mandatory for the Council of Ministers to communicate its decision to the Lt. Governor, who needs to issue an order only if he has not referred the matter to the President due to a difference of opinion with the Council of Ministers.

“It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993.”

Thus, the High Court’s decision, in a nutshell, was that the Lt. Governor is not bound to act as per the “aid and advice” of the Council of Ministers since he has the power to refer “any matter” to the President, whose decision would be final.

All three judgments delivered by the Constitution Bench today agree that an elected government cannot be reduced to a mere municipal government and that the Lt. Governor is bound by the aid and advice of the Council of Ministers.

In arriving at such a conclusion, the Court relied extensively on lofty principles of Constitutional morality, collective responsibility, purposive interpretation, collaborative federalism and respect for representative government.

“The elected representatives and Council of Ministers of Delhi being accountable to the voters of Delhi must have appropriate powers so as to perform their functions effectively and efficiently”, the majority opinion penned by CJI Dipak Misra states.

Justice Chandrachud held,

“…in defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship with Lieutenant Governor as a delegate of the President, the Court cannot be unmindful of the constitutional importance which has to be assigned to representative government. Representative government is a hallmark of a Constitution which is wedded to democracy for it is through a democratic form of governance that the aspirations of those who elect their representatives are met.

However, reconciling the various lofty principles enunciated throughout the judgment with the ‘proviso’ was where the real task of the Court was.

And in this regard, the judgment leaves room to the Lt. Governor to continue to pose a hindrance to the governance of Delhi.

Below is how the three judgments have dealt with the proviso.

CJI Dipak Misra for himself and Justices AK Sikri and AM Khanwilkar

[L-R]: Chief Justice Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar
[L-R]: Chief Justice Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar

At Conclusion XVII of the judgment (at page 231) penned by CJI Dipak Misra, it was held that the meaning of ‘aid and advice’ has to be construed to mean that the Lt. Governor is bound by the aid and advice of the Council of ministers.

“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

Immediately after comes the rider that this would hold true so long as the Lt. Governor does not exercise his power under the proviso.

“…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 decision­making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision.”

Whether the Court then seeks to reign in the Lt. Governor’s exercise of the power under the proviso is the question. This is answered in the very next conclusion, conclusion XVIII, at page 232 wherein the Court states,

“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…”

But how to determine this exception? In what situations can the exceptional power be exercised? To answer, this the Court reverts to Collaborative Federalism and Constitutional Morality. It states,

“ [it] 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.”

Failing to provide a concrete answer to when the Lt. Governor should exercise his power under the proviso, the Court goes on to state that difference of opinion between the Lt. Governor and the Council of Ministers should have a sound rationale and the former should not adopt an obstructionist attitude.

Justice DY Chandrachud

Justice Chandrachud
Justice Chandrachud

The judgment by Justice DY Chandrachud is a bit more nuanced on this aspect. He says that 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.

So then what falls 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”, holds Justice Chandrachud.

But even he has left it open-ended, saying that the Court cannot give an exhaustive list of what would be covered by the proviso.

“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 warranting recourse to the proviso”

He concludes by saying that in deciding as to whether the proviso should be invoked, the Lt. Governor has to abide by the principles which have been indicated in the body of this judgment.

Justice Ashok Bhushan
Justice Ashok Bhushan

Justice Ashok Bhushan

Justice Bhushan also deals with this aspect and states that the power under the provision should be exercised sparingly when it becomes necessary to safeguard the interest of the Union Territory.

“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.”

Conclusion

Thus, while the Delhi High Court held that the Lt. Governor need not act as per the aid and advice of the Council of Ministers because of the proviso, the Supreme Court held that the LG has to act as per the aid and advice of the Council of Ministers, subject to the proviso.

The Supreme Court has not undertaken the task of defining or setting out what the situations would be when the Lt. Governor can exercise his power under the proviso.

While the majority judgment harps on exceptional circumstances based on constitutional morality, Justices Chandrachud and Bhushan attempt to scratch the surface of the same, though, eventually, leaving it open to the subjective wisdom of the Lt. Governor.

Effectively, the power of the Lt. Governor under the proviso remains, and given that the situations wherein he can exercise the said power have not been circumscribed, the future exercise of this power could lead to political tensions similar to the current one.

The battle is far from over.

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