Kejriwal wins.

Kejriwal wins.

Dilli AAP ki: SC restores power to elected govt; tells ‘titular’ L-G not to obstruct

L-G bound by aid and advice of Delhi’s ministers; real authority with govt

Agency Report | New Delhi | 4 July, 2018 | 11:20 PM

The Lieutenant Governor does not have independent decision-making powers and the real power must lie with the elected government, the Supreme Court has ruled in a big win for Arvind Kejriwal's Aam Aadmi Party (AAP) in the fight for control of Delhi. "A balanced federal structure mandates that the union does not usurp all powers and the states enjoy freedom without any unsolicited interference from the centre," said the court, asserting that the Lt Governor must not be obstructionist. "A big victory for people of Delhi", said 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.

The Supreme Court on Wednesday unanimously ruled that Delhi’s Lt Governor was constitutionally bound by the “aid and advice” of the elected government — a decision hailed by the ruling AAP as historic and which ends a bitter power tussle over the capital’s administrative control and governance.

A five-judge constitution bench headed by Chief Justice Dipak Misra said the real powers of governance in Delhi rested with its elected representatives and their opinion and decisions ought to be respected.

The ruling overturned an earlier Delhi High Court verdict which had declared the Lt Governor as the head of the Delhi administration, triggering an ugly war between the Centre and the Aam Aadmi Party.

The court said the Lt. Governor, appointed by the central government, was bound by the aid and advice of the Ministers of the city government in all areas except land, police and public order or where he refers the matter to the President citing difference of opinion.

“Real authority to take decisions lie with the elected government. This is the meaning of ‘aid and advice’. Titular head has to act in accordance with aid and advice,” Justice D.Y. Chandrachud observed.

Chief Justice Misra, also speaking for Justice A.K. Sikri and Justice A.M. Khanwilkar, wrote that the Lt. Governor was not vested with any independent decision-making powers and cannot act in a “mechanical manner without due application of mind” in referring decisions of the government citing differences.

Every “trivial difference of opinion” between the Lt Governor and the city government, he said, could not be referred to President for a decision.

“In this context, even in case of differences of opinion, the Lt Governor and the NCT government should act with constitutional morality and trust for each other.”

Chief Minister Arvind Kejriwal, who has been leading the campaign seeking more powers to his government, hailed the court verdict as “a big victory for the people of Delhi, a big victory for democracy”.

His deputy Manish Sisodia called the ruling a “landmark judgement” that has ensured that the Delhi government “will not have to send their files to Lt Governor for approval.

“Now work will not be stalled. Powers are restored back to Delhi. This verdict stands against the whimsicality of the LG. I thank the Supreme Court.”

And as celebrations erupted at the AAP office, Sisodia said that the power to transfer and post officers would now on rest with the Delhi government.

But the court verdict carried a message for Kejriwal and his AAP as well.

The court reminded the elected representatives about constitutional obligations and the responsibility to ensure the welfare of the people.

“There is no room for absolutism. There is no space for anarchy. 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 court ruled.

Kejriwal and his cabinet have had constant run-ins with Lt Governors — Najeeb Jung earlier and his successor Anil Baijal — who were accused of stalling key policy decisions of the city government.

The dispute stems out of the status of Delhi. The city is a Union Territory and not a full state. As a result, some areas are under the control of the central government represented by the Lt. Governor.

But the AAP argued that the Lt Governor, under pressure from the Modi government, kept on nullifying the city government’s decisions, resulting in Kejriwal and three of his ministers launch a sit-in at Baijal’s office-cum-residence last month for eight days. Amid the crisis, Chief Ministers of four non-BJP ruled states backed Kejriwal.

The Bharatiya Janata Party (BJP), routed by the AAP in the February 2015 Assembly election and which has only four members in the 70-seat Assembly, dismissed any notion that the court ruling was a victory for “anarchist” Kejriwal.

“We have seen Kejriwal raising politics of dharna and anarchy. He has never tried to work harmoniously. The Supreme Court has dealt a severe blow to Kejriwal. He should now leave the politics of anarchy and move towards governance,” BJP spokesperson Sambit Patra said.

Delhi Congress leader Sharmishtha Mukherjee said Kejriwal “must be the most worried man today” because there would be “no one to blame and pass the buck anymore”.

Former Chief Minister and Congress leader Sheila Dikshit said the Supreme Court ruling was a mere reiteration of the fact that the Delhi government’s powers cannot be compared with other states.

“But whether a subject comes under the Lt Governor or the city government, Delhi will suffer if they do not work together or are in conflict. Even the Congress was in power in Delhi for 15 years and never had a conflict (with Lt Governor). In cases of conflict, we used to resolve it amongst ourselves. Sometimes the government and sometimes the LG used to step back,” she said.

But CPI-M said: “This is a victory of federalism.”
In a message to Lt Governor Anil Baijal and Chief Minister Arvind Kejriwal, the Supreme Court warned against obstructionism and cautioned against anarchy and absolutism in the power tussle between the Delhi government and the Centre.

In its 535-page judgement copy, the court reminded the LG and the Aam Aadmi Party (AAP) of the constitutional trust to “be exhibited by all constitutional functionaries while performing their official duties”.

* ‘It is a parliamentary form of government and federal balance in mandatory’

The court said the form of governance in the country was guided by the principle of collective responsibility of the Cabinet that owes a duty towards the legislature for every action taken in any of the Ministries and every individual minister is responsible for every act of the Ministry.

“This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the LG, then the concept of collective responsibility would stand negated.”

The ruling by the five-judge bench said the Constitution mandates a federal balance wherein independence of a certain required degree is assured to the state governments.

“As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the states enjoy freedom without any unsolicited interference from the central government with respect to matters which exclusively fall within their domain.”

* ‘No statehood but Lieutenant Governor has to act on aid and advice of Delhi cabinet’

The court clearly ruled out the status of a state to Delhi under the present constitutional scheme and said the status of NCT of Delhi was “a class apart” and the status of its LG was not that of a Governor of a state but remains an administrator only “in a limited sense”.

The verdict said the Parliament had provided the capital a directly elected legislative assembly with legislative powers over matters falling within the state list and the concurrent list, barring those excepted, and a mandate upon the LG 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.

However, the assembly has no legislative powers on three subjects – land, police and law and order as enshrined in the constitution. The three subjects remain with the central government and powers related to these matters are exercised by the LG in consultation with the Home Ministry.

In respect of other matters, the executive power is to be exercised by the elected government – subject to the constitutional provisions, the court order said.

“Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.”

It said the LG is bound by the aid and advice of the council of ministers.

“The Lieutenant Governor 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 him.”

* ‘Lieutenant Governor must not act irrationally, mechanically’

The court emphasized that the power of the LG represents the exception and not the general rule which has to be exercised in exceptional circumstances keeping in mind among other constitutional requirements “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 an exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.”

In case of differences in opinions, the LG and ministers must attempt to settle any point by way of discussion and dialogue.

“The Lieutenant Governor must work harmoniously with his ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance.”

* ‘Lt Governor’s concurrence is not needed’

The court said the LG being the administrative head shall be kept informed with respect to all the decisions taken by the council of ministers.

The terminologies “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the rules governing the NCT lead “to the only possible conclusion that the decisions of the council of ministers must be communicated to the Lieutenant Governor”.

This, however, “does not mean that the concurrence of the Lieutenant Governor is required.

“The communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him.”

* ‘Nobody should feel they have been lionized’

The court asked both the LG and the city government that they should constantly remind themselves that they were constitutional functionaries and “have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner”.

Stressing on the need to have discussion and deliberation, the court said the fine nuances were 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.

“Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the constitution and showing veneration to its sense, spirit and silence is a constitutional renaissance.

“Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a ‘rational anarchist’, but (it) has no entry in the field of constitutional governance and rule of law.”
The Aam Aadmi Party (AAP) hoped that both the central government and Lt Governor Anil Baijal will comply with the Supreme Court order restoring to the Delhi government its power.

AAP spokesperson Raghav Chadha said that Baijal does not hold the same power anymore and the Centre must let the elected government work now.

“The BJP today cannot hide behind their own understanding of the Constitution in a way which benefits them politically. They must let the elected government function now,” he said.

“The LG, who was rendering all the decisions of the government as unfit or invalid, does not have the same power anymore. Today, the powers are restored with the government. The elected government will take all decisions and the LG will only be informed about those decisions, not for his consent but only for his information.

“We hope the LG, as well as the BJP, will comply with the orders,” he said.

Delhi Chief Minister Arvind Kejriwal called a meeting of all cabinet ministers at his residence at 4 p.m. “to discuss critical projects” which he said had been blocked thus far. (IANS)