Delhi not subservient to Centre, says Gopal Subramanium

New Delhi: The Narendra Modi government cannot treat the democratically elected AAP government in Delhi as subservient to the Central government through the home ministry, argued senior counsel Gopal Subramanium in the Supreme Court on Thursday.

Making this submission before a bench of Justices A.K. Sikri and R.K. Agrawal, hearing a batch of appeals filed by the Delhi government, the counsel argued that the home ministry cannot assume that it has overriding power and authority over the Delhi government.

He said the Constitution has given Delhi a separate identity and there is an elected government. If every decision of the council of ministers of the Delhi government is to be interfered with and nullified by the lieutenant-governor, it will amount to violating the basic structure of the Constitution.

Justice Sikri told the counsel “your grievance may be genuine that a democratically elected is answerable to the people. But if you interpret the provisions, all your actions have to be in consonance with the L-G and you cannot act in isolation. You yourself agree that in matters like police, law and order and land the lieutenant-governor had exercise his powers as a delegate of the President. From 1992 till now no such problem has arisen. You have to act within what is permissible and what is within your authority”.

The counsel said “balancing the powers would lead to harmony and good governance. A lot of this crisis could have been averted. All that we need is mutual respect and understanding each other’s position. It is clear that council of ministers are subservient only to the Constitution and not to the Centre”.

He faulted the Centre for its stand that all the decisions of council of ministers can’t be enforced; state government cannot implement any of its policies without the L-G’s consent and all executive decisions will be reversed by the L-G. Such a defiant position is not acceptable. “Even now if the Centre assures that it will respect our position, I will ask my client (Delhi government) to withdraw these appeals,” the counsel submitted.

Mr Subramanium, however, argued that the high court’s interpretation that the lieutenant-governor has absolute power is completely contrary to the democratic spirit and the basic structure of the Constitution. It is also contrary to the plain and conscious legislative scheme.

He said it is inconceivable that in a Cabinet form of government, you have a titular head who is not accountable but interposes himself on every decision. It is a matter of concern that the supremacy of the Constitution is at stake and I want your Lordships to draw the boundaries of power, he said.

He said the L-G as the delegate of the President has assumed the right to act in relation to all matters virtually taking away executive and legislative powers of the democratically elected Government of NCT of Delhi and undermining the concept of responsible government and self rule.

The counsel submitted that the very object and purpose of distribution of powers between the Union of India and NCT of Delhi in Article 239AA(3) of the Constitution is defeated by this interpretation of the said Article and the unlawful assumption of the power by the Union of India to control the AAP government in every sphere, including “services”.