Delhi Chief Minister Arvind Kejriwal meets Prime Minister Narendra Modi, in New Delhi, on Feb 12, 2015. (Photograph: PIB)

Delhi Government Versus LG: The Bicycle Ride That Is Delhi

BloombergQuintOpinion

Part One of the Delhi versus Centre slugfest for constitutional supremacy has ended with much-needed clarity from the Supreme Court’s Constitution Bench.

Both governments that today claim victory, took extremely strong positions in court. There were diametrically opposite stands—of the Aam Aadmi Party's Delhi government and the National Democratic Alliance's central government—both in the Delhi High Court and through the hearings in the Supreme Court, with lengthy arguments over weeks.

In declaring the law, the Supreme Court has provided relief to the denizens of Delhi who were mute spectators to this pitched legal battle. While a number of issues had been raised before the High Court and the Supreme Court, the Constitution Bench, at present, confined itself to the controversy of the status of Delhi post the introduction of Article 239AA in the Constitution, and the 1991 law governing Delhi and the Rules of Procedure and Conduct of Business of the Delhi Assembly.

In a lengthy (535 pages) but a nuanced decision yesterday, giving relief to Delhiites, the Supreme Court gave sage advice to both sides on constitutional democracy and ethos. While holding that the Lieutenant Governor is an administrator and not akin to a Governor of a state, it added that Delhi is unique being the national capital and governed under Article 239AA of the Constitution and is a union territory and not a state.

The Supreme Court’s view is that the 1991 law governing Delhi and the rules of business require the governor to be apprised of every decision by ministers and give him the authority to differ in order to guide, discuss, and see that the administration of Delhi runs for the welfare of the people.

The broad stand of the Union that the term “any” to describe the LG’s power to disagree in Article 239AA(4), should be given the widest import has not been accepted, holding that the LG must act as per “aid and advice” in matters where the Legislative Assembly has the power to enact laws. At the same time, the Court cautioned the Delhi council of ministers to be guided by values and prudence and made it clear that Delhi is not a state, following an earlier nine-judge bench decision.

It now stands clarified that unlike in states, the Centre’s power in matters of land, police and public order are untrammelled.

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In three separate judgments by Chief Justice Dipak Misra, Justice DY Chandrachud and Justice Ashok Bhushan, we are explicitly told that while the LG must be informed of all decisions and has the power to disagree with the elected Government of Delhi, but, under Article 239AA, he must act with constitutional objectivity while exercising the special power vested in him and not mechanically.

Only on valid grounds, and to protect the interest of the National Capital Territory, must he refer the decision of the council of ministers to the President. 

Discussing, at length, principles of constitutional trust and morality, collaborative federalism and balance, the Court held that the LG’s “difference of opinion” with the elected government must meet these tests and be objective.

Also read: Delhi Lieutenant Governor Cannot Act As An Obstructionist In Policy Decisions: Supreme Court 

In this elaborate judgment, the Court delved into the historical background of the administration of Delhi and concluded that while Delhi cannot be treated as a state, it is a class apart. The representative government has a role in its areas of authority, yet is subject to Parliament’s power to protect national concerns, apart from the Centre’s exclusive powers in the areas allocated to it.

The Chief Justice’s analogy of a bicycle to describe the relationship and interpreting Section 49 of the 1991 law; and that the Chief Minister and the LG are a team with the President retaining general control, should not be ignored.

Justice Chandrachud, supplementing with his judgment, described the parameters of interference by the LG as those categorised in national interest keeping in view the capital of Delhi – “an amalgam between national concerns and representative democracy”. Yet, in describing the powers of the LG to be exclusive and not bound on aid advice where he has discretion or where there is power entrusted by law, he effectively laid out the roadmap for determining the remaining issues such as those under the Commission of Enquiry Act which are to be decided by the two-judge bench.

In a stark reminder to those manning the corridors of power, Justice Bhushan, concluding a comprehensive opinion, sagely added that “from persons holding high office, it is expected that they shall conduct themselves … to ensure smooth running of administration so that rights of all can be protected”.

This exposition of the law gives guidance for a harmonious relationship between Delhi and the Union, not only for the present but for the future. Other issues have been sent back to the Division Benches to be answered, and Part Two of the story has yet to unfold.

In the meantime, as a pucca Delhiite, one prays that the court’s words will be heard not only in Delhi but throughout the country, and in future citizens be given the governance they are entitled to and the oath to uphold the Constitution—those in authority take, elected or otherwise—be honoured both in letter and spirit.

Sidharth Luthra, Senior Advocate, appeared for one of the writ petitioners in this case who had challenged the Delhi governments powers to appoint a Commission of Inquiry. He is also Visiting Professor at Northumbria University. Views are personal.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.