[Breaking] Delhi Lt. Governor is bound by aid and advice of Council of Ministers: Supreme Court

[Breaking] Delhi Lt. Governor is bound by aid and advice of Council of Ministers: Supreme Court

Murali Krishnan

In what seems to be a big win for the Aam Aadmi Party (AAP), the Supreme Court today unanimously ruled that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers of the NCT government.

The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan.

The Bench delivered three separate judgments – Justices Sikri and Khanwilkar concurred with the judgment of CJI Misra, while Justices Chandrachud and Bhushan wrote separate but concurring judgments.

Here is a summary of what the Supreme Court held:

CJI Misra’s judgment

  • The court must adopt an interpretation of Constitution which is in consonance with democratic principles. All three organs of State must stay rooted to Constitution. Decisions should be in consonance with the spirit of Constitution
  • The principle of collective responsibility significant in the context of “aid and advise”
  • The Union and States must embrace a collaborative federal architecture, Supreme Court
  • Purposive interpretation has gained significance over-literal interpretation (of Constitution)
  • Status of Delhi is sui generis, a class apart. Lt. Governor is not in the same class as a Governor of the State
  • Lt. Governor is bound by aid and advice of Council of Ministers, subject to the proviso to Article 239 AA to refer a matter to President. He cannot act independently and has to act as per aid and advice of Council of Ministers
  • Lt. Governor has to work harmoniously with his Council of Ministers
  • Council of Ministers has to communicate its decision to Lt. Governor, this does not mean Council of Ministers are bound by Lt. Governor
  • There is no space for anarchy and absolutism in our Constitution

Justice Chandrachud’s judgment

  • Constitutional skirmishes test the resilience of democracy
  • Constitutional interpretation must be based on Constitutional morality
  • The sovereignty of people, democratic way of governance, secularism intrinsic to Constitution. Basic Structure imposes restrictions on the exercise of Constituent Power, Chandrachud J.
  • The doctrine of aid and advice enhances the Constitutional value of collective democracy
  • In democratic governance, real power and substantive accountability is vested in elected representatives
  • While interpreting Article 239AA, Court has to further democratic values
  • The proviso to Article 239AA(4) has to be construed so that “any matter” is not ‘every trivial matter’; otherwise governance will come to a standstill
  • The Lt. Governor must bear in mind that it is not he but Council of Ministers who take substantive decisions
  • Lt. Governor must act by the aid and advice of Council of Ministers, or in cases where matter is referred to President on the decision of President, he cannot act independently

Justice Bhushan’s judgment:

  • Co-extensive Legislative power for Union and Delhi govt with respect to NCT of Delhi
  • Lt. Governor bound by aid and advice of Council of Ministers except as provided in proviso to Article 239AA (4)
  • The power of Lt. Governor under Proviso to Article 239AA to be exercised in matters of Constitutional relevance

A battery of Senior Counsel appeared in the matter. While the NCT government was represented by Senior Counsel Indira Jaising, Gopal Subramanium, P Chidambaram, Rajeev Dhavan and Shekhar Naphade, the Central government was represented by Additional Solicitor General Maninder Singh and Senior Advocate Sidharth Luthra.

The case pertains to the interpretation of Article 239AA of the Constitution of India. Article 239AA provides for special provisions with respect to the capital. The peculiar status of the National Capital Territory and the powers of the Delhi Legislative Assembly and the Lieutenant Governor and their interplay were debated in the case.

The case itself has its genesis in a notification issued by the Central government in May 2015. The said notification stated that,

“In accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that –

subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President.

Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.”

It also stated that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central government. The Aam Aadmi Party (AAP) government claimed that this notification was a gross abuse of power and ultra vires the constitutional scheme. It, therefore, challenged the same in the Delhi High Court.

The High Court ruled against the Delhi government, holding that Delhi continues to be 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.

This led to the appeal in Supreme Court.

Read the timeline here.

Read the judgment:

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