Big victory for Arvind Kejriwal as SC clips L-G’s wings

New Delhi: In a landmark judgment, the Supreme Court on Wednesday held that the lieutenant governor (L-G) of NCT of Delhi has no absolute or over-riding powers and he is bound by the aid and advice of the Council of Ministers. At the same time, the court upheld the L-G’s exclusive executive power over matters related to the Union Territories’ land, police, law and order and said that Delhi cannot be accorded the status of a state.

A five-judge Constitution Bench headed by the Chief Justice Dipak Misra, in a 535-page ruling, said, “The lieutenant governor has not been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.”

The Supreme Court, however, held that Delhi is a Union Territory with special status and cannot be construed as a state as a nine-judge Bench of the apex court has already made the position clear. This, in a way, ruled out any possibility of chief minister Kejriwal’s demand for full statehood being fulfilled.

The CJI said the elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform   their functions effectively and efficiently.

The CJI said a representative form of government should not become a government by elites where the representatives so elected do nothing to give effect to the will of the sovereign.

The verdict came on a batch of petitions filed by the Kejriwal government challenging the alleged obstructions caused by L-G Anil Baijal, who reports to the Union government, in the day-to-day administration.

CJI Misra for himself and Justices A.K. Sikri said, “It is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme.

“The status of NCT of Delhi is sui generis, a class apart, and the status of the Lieutenant Governor of Delhi is not that of a governor of a state, rather he remains an administrator, in a limited sense, working with the designation of L-G,” the verdict said.

Justices D.Y. Chandrachud and Ashok Bhushan gave different but concurrent judgments with additional reasons.  

“The L-G must bear in mind that it is not he, but the council of ministers which takes substantive decisions and even when he invokes the proviso, the L-G has to abide by the decision of the President,” said Justice Chandrachud.

It held that though the L-G was not a  “titular head”, he should not emerge as an “adversary having a hostile attitude” towards the Council of Ministers but rather act as a facilitator.

The differences of opinion between the LG and the Council of Ministers should have a “sound rationale” and there should be no exposition of the “phenomenon of an obstructionist”.

The Constitution Bench had heard arguments on a batch of special leave petitions filed by the Delhi government against a judgment of the Delhi high court, which held that the L-G was the administrative head of the Capital and was not bound by the aid and advice of the chief minister or Council of Ministers. The high court had held that the then LG, Najeeb Jung was its administrative head and all decisions will have to be taken with his consent and concurrence.

The Kejriwal government had complained that the L-G is acting as a stumbling block in every decisions as his approval is required for implementation.

The bench said the terminology used in Articles 239AA of the Constitution and the rules make it clear that the decisions of the Council of Ministers must be communicated to the L-G but this does not mean that his concurrence is required.

The CJI held that the control of the Centre is confined to three areas — land, police and public order — and there cannot be any attempt on the part of the Union government to seize all control.

“The Centre must allow the concepts of   pragmatic federalism   and   federal   balance   to   prevail   by giving the NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution,” the court said.

The CJI said the LG should not “usurp the powers” and 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 L-G and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionist and profound sagacity and judiciousness.

Mr Kejriwal called the apex court decision  “a big victory for the people of Delhi...a big victory for democracy victory.”

Immediately after the court ruling, Mr Kejriwal chaired a meeting of all Cabinet ministers at his residence to discuss critical projects and mounted attack on Prime Minister Narendra Modi.

“If Modi govt had not withdrawn the powers of elected govt thro illegal orders, precious three years wud have been saved. People of Delhi are grateful to judiciary. Today’s order reinforces people’s faith in judiciary (sic),” Mr Kejriwal tweeted.

The Union government sought to downplay the Supreme Court verdict on Delhi’s statehood issue, saying the Constitutional Bench has only underlined the special status of Delhi as not being a “state” in the conventional sense.

A senior government functionary, who did not want to be quoted, also said the judgment has made it clear that Delhi cannot frame laws which are in contravention of laws being implemented by the Centre.