Continuing to interpret Article 239AA that gave special powers to Delhi, the Supreme Court today orally observed that it envisages harmonious functioning between the Lt Governor and the state cabinet and the spirit should be “participatory”.

Significantly Chief Justice Dipak Misra also said there is also no scope for the Governor to interfere in day to day functioning of the government.

“Actually it has to be participative governance. There has to be some kind of harmony. Yes there cannot be day to day interference by the Governor. Even if there is interference or discussion some sanctity has to be added..it should be value oriented, reason oriented..our role is as a final interpreter .we cannot actually carve out area of discretion..on where all there can be differences.. what the parliament envisaged has to be in order..what was intended by the amendment cannot be disturbed..the intent has to be respected”, CJI Misra heading a five judge constitution bench said.

The bench is hearing a batch of petitions filed by Delhi government against the Delhi High Court judgment of August last year which declared the Lt Governor as the “administrative head” of Delhi and ruled that he is not bound by the aid and advice of the council of ministers.

The remarks comes four days after the bench said that “prima facie” the constitution gave primacy to the lieutenant governor in the affairs of Delhi, but observed that the L-G cannot sit on files sent for approval by an elected government.

The apex court seemed to agree with this view and said that “land, police, and public order” are not under the purview of the Delhi government.

Still, “the L-G cannot stultify an executive decision by sitting over a file. He must exercise his power in a reasonable time,” the bench had observed.

The bench said difference of opinion should not be on matters of trivial nature . “LG should differ with Council of Ministers keeping in mind the citizenry's trust and also keep in mind that that he is an august head”, said the CJI.

GOPAL SUBRAMANIUM’S ARGUMENTS

The comments from the bench came after Gopal Subramanium, senior counsel who began arguments for the Delhi government alleged that the governor was interfering in day to day governance which caused delay and had almost paralyzed governance.

“He wants to give his opinion on every file..he wants to demonstrate supervening power..he also thinks he has powers to overrule decisions taken by the government without reference to President. Even the High Court upheld the power and that is what actually hurt us”, he said.

CJI Misra then asked Subramanium..” so you say that..government takes any decision and asks LG to endorse..if he agrees its fine and if he disagrees it has to go to president but now you are saying the decision singularly taken by the Governor”.

Subramanium said “every file is being summoned ...direction given to override final decision of the government. That is not permissible”

“He cannot interfere with day to day governance. Summon every file take a decision this is a serious issue..he is a titular head..where all he can interfere is clearly provided..the proviso is a safeguard against transgression”, argued Subramanium.

What senior advocate for Delhi government Gopal Subramanium argued on the issue of Difference of opinion between the Lt. Governor and his Ministers.

The Proviso to Clause (4) of Article 239 AA says that in case of difference of opinion between the Lt. Governor and his ministers ON ANY MATTER, the Lt. Governor shall refer it to the President whose decision shall be final. The crucial words are “on any matter”.

The Proviso follows the provision which vests in the executive power to aid and advice the Lt. Governor in the exercise of his functions in respect of all matters within the legislative jurisdiction of the Assembly. In our constitutional democracy, the Governor of a State can act only on the aid and advice of the Council of Ministers except in matters which fall within his discretionary jurisdiction. It simply means that final decision making is vested in the Council of Ministers. Since the same phraseology is used in clause 4, it would carry the same meaning.

Thus the final decision making power in respect of all matters in the State List and the Concurrent List in the NCT except Police, Public order and land, is vested in the Council of Ministers

If these words are interpreted to mean all matters within the jurisdiction of the Council of Ministers, then the Lt. Governor with the intention of making the govt. ineffective can discover differences on all matters and refer them to the President, which means the Central Govt., the govt. of NCT will not be able to take final decision on any matter.

The Council of Ministers will effectively cease to be accountable to the Assembly and thus a serious constitutional crisis will arise. This interpretation will make the Council of Ministers inherently incapable of being responsible to the Assembly. This interpretation, therefore, should be discarded. The proper thing to do is read down these words to mean only the overlapping matters between the reserved list of the Lt. Governor and the general list.

Even when Article 239 AA (3) clearly demarcates the jurisdiction of the Assembly and the Lt. Governor still there may be matters on which there can be differences in respect of jurisdictions. Such matters can be referred to the superior authority, the President. This interpretation will smoothen the functioning of the Govt. of NCT.