The Supreme Court on Wednesday upheld the Delhi government’s powers to legislate on matters under its jurisdiction, with a unanimous 5-0 verdict. However, it did not take away the lieutenant governor’s power to refer contentious calls to the President, provided he did not exercise the authority “mechanically”.

In its much anticipated ruling, the SC said the LG’s power to refer a decision of the Delhi government to the President should be used sparingly and not be the rule even as the court did not alter the constitutional scheme for the capital, which gives the Centre control over public order, police and land.“The LG must work harmoniously with his ministers that is the council of ministers headed by theministers must be communicated to the LG but this does not mean that the concurrence of the LG is required,” the five-judge bench led by CJI Dipak Misra.

Shorn of the emphasis on the supremacy of the elected government, the verdict does not change the distribution of powers between the city government and the LG, something CM Arvind Kejriwal has been campaigning to alter. The verdict not only recognised the exclusive jurisdiction of the Centre over the crucial troika of public order, police and land, it also upheld the LG’s authority to refer differences to the President, that is, the Union Cabinet or, precisely, the body he reports to.

The restraint that the LG should not exercise this power “mechanically” cannot translate into automatic concurrence because of divergent definitions of what qualifies as knee-jerk stalling.The bar for the LG has been set high. However, read along with the court’s assertion that Delhi is a Union territory and not a full-scale state as also that the LG is not a titular head, the judgment can reduce but not eliminate deadlocks between the AAP government and the BJP-ruled Centre. Nonetheless, the verdict can be good propaganda fodder for AAP.

Tells Them To Sort Out Differences Through Discussion:

However, the SC had a veiled warning for both the LG and the CM. While asking them to sort out their differences through discussions, the CJI said, “The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel they have been lionised. They should feel they are serving the constitutional norms, values and concepts. The popular will of the people (of Delhi) which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics.” The bench of CJI Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan in a cumulative 535-page judgment, containing three concurrent views, said Parliament’s decision to create Delhi assembly and prescribe governance through elected representatives mandated that decisions of the council of ministers on subjects falling squarely within Delhi’s legislative domain could not be stalled mechanically by the LG citing difference of opinion.

Under Article 239AA(4), the LG is empowered to refer any decision of the council of ministers or Delhi assembly to the President in case he has a difference of opinion. During pendency of the matter before the President, the LG can take administrative decisions on the issue if he thinks it requires urgent action. Writing the 237-page main judgment for himself and Justices Sikri and Khanwilkar, the CJI said, “The council of ministers headed by the chief minister is only required to communicate and inform its various proposals, agendas and decisions to the LG so as to keep him apprised and to enable him scrutinise them.” Justices Chandrachud and Bhushan concurred with the CJI’s views in separate judgments.

The LG’s concurrence was not required on matters falling squarely within the legislative competence of the Delhi assembly and the executive domain of Delhi government, CJI Misra said. Parliament, while enacting Article 239AA of the Constitution to craft a unique provision for Delhi, which is neither a state nor a Union territory, did not grant it legislative powers over state subjects like public order, police and land.

“It has to be clearly stated that requiring prior concurrence of the LG would absolutely negate the ideals of representative governance and democracy conceived for National Capital Territory of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of Parliament to treat Delhi government as a representative form of government,” the CJI said.

All five SC judges demurred at the thought of the Centre’s representative attempting to thwart decisions of an elected government accountable to the people of Delhi through the assembly. The CJI said, “The LG has not been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of the council of ministers or he is bound to implement the decision taken by the President on a reference being made by the LG.

The SC warned the LG that he could not resort to his powers under Article 239AA(4) and refer to the President each and every matter sent to him by the council of ministers citing difference of opinion. The power of the LG under the said proviso represents the exception and not the general rule; it has to be exercised in exceptional circumstances keeping in mind the standards of constitutional trust and morality, the principles 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 CJI said.

Justice Chandrachud explained that the LG could refer a decision to the President only when dialogue between him and the council of ministers failed to resolve the difference of opinion. If every matter was referred to the President on the premise of difference of opinion, then it would lead to the President assuming administration of every aspect of the affairs of Delhi, negating the constitutional structure adopted for the national capital, he added. Justice Bhushan said, “Legislative assembly of NCTD being representative of 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.”

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