The Kejriwal government wants the Supreme Court to lay down the law on whether the LG can unilaterally administer the National Capital without being bound by the “aid and advice” of the elected government.

The Lieutenant Governor (LG) of Delhi cannot stultify proposals or schemes forwarded by the Council of Ministers to him by simply sitting on them, Justice D.Y. Chandrachud orally observed on Thursday.

“He [LG] is bound to pass the difference of opinions [between the LG and the Delhi Council of Ministers] to the President for early resolution,” he said.

Justice Chandrachud’s observations came on the first day of a five-judge Constitution Bench hearing a batch of nine appeals filed by the Arvind Kejriwal-led Aam Aadmi Party government against an August 4, 2016 judgment of the Delhi High Court.

The AAP government argued that the High Court declared the LG to have “complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the LG.”

The Kejriwal government wants the Supreme Court to lay down the law on whether the LG can unilaterally administer the National Capital without being bound by the “aid and advice” of the elected government.

High Court ruling

“The Delhi High Court actually said this LG has special powers greater than the President, greater than other Governors of States,” senior advocate Gopal Subramanium submitted for the Delhi government.

The 69th Amendment of the Constitution in 1992 gave the National Capital of Delhi special status with its own democratically elected government and legislative assembly.

Sub-section (4) of Article 239AA mandates that a Council of Ministers shall aid and advice the LG in his functions regarding laws made by the Legislative Assembly.

The focus of the current controversy is a proviso to Article 239AA (4), which mandates that in case of a difference of opinion between the LG and the Council of Ministers, the former has to refer the issue to the President. In the meanwhile, while that decision is pending before the President, the LG, if the matter is urgent, can use his discretion to take immediate action.

The Constitution Bench, led by Chief Justice Dipak Misra, prima facie said that the Delhi government’s ability to “aid and advice” the LG is limited to subjects other than public order, police and land in the National Capital. It said that the proviso to Article 239AA (4), on plain reading, seems to give primacy to the LG.

Justice Ashok Bhushan remarked that the LG is entitled to take a different view and is not bound by the aid and advice of the Delhi Cabinet.

Mr. Subramanium alleged that the LG has misused the discretion in this proviso to block governance to such an extent that decisions from appointment of teachers in municipal schools to opening of mohalla clinics have been pending for over a year.

The Chief Secretary and other officers, without applying their minds to the various welfare proposals and schemes, simply forward the files to the LG, where it remains indeterminately.

‘LG thinks he is supreme law’

“LG thinks he is suprema lex [supreme law] on six grounds. One, that Delhi is still a Union Territory. Two, Parliament makes the law for Delhi under Article 246 (4) of the Constitution. Three, Article 239AA has brought in no change to Delhi’s status as a Union Territory simplicitor. Four, the proviso gives him the power of defiance. Five, he has to concur to every decision made by the Delhi government. Six, he can take independent decisions... Now, did the 69th Constitutional Amendment contemplate two parallel governments like this?” Mr. Subramanium asked.

He submitted that the proviso envisaged a “great confidence, trust” to evolve between the Chief Minister and the LG. “But how can there be confidence when the LG holds meetings with government officers wihout the Chief Minister?” Mr. Subramanium said.

“So, in daily governance and implementation of laws, LG says he is your boss,” Justice A.K. Sikri remarked from the Bench. “It would have been alright if he had said just that. He is actually saying that we do not count,” Mr. Subramanium observed.

In his day-long submissions before the Bench, Mr. Subramanium said situation of governance in Delhi has come to such a turn that “department Ministers are unable to get an opinion from their secretaries and civil servants on issues of governance.”

He said, “They have to literally fall at their feet.”

When Justice Bhushan cautioned him to confine his arguments to interpreting Article 239AA and not refer to any actual events, Mr. Subramanium quoted the U.S. Supreme Court Justice Oliver Wendell Holmes Jr. to reply that “sometimes courts have to refer to seminal events from history while interpreting the Constitution.”

Mr. Subramanium argued that the “extraordinary discretion” of the LG is confined to special circumstances and not in everything.

At this point, Chief Justice Misra agreed that the “difference of opinion” between the LG and the Delhi government should be “authentic.”

“Yes. It should not be just to stultify governance. The executive functions of the Delhi government is not just to enforce existing laws but also to make schemes for the poor, children, etc. But here, in the National Capital, we see the LG interfere in the normal day-to-day governance... This is not done anywhere in the country,” Mr. Subramanium responded to the Chief Justice’s remark.

The senior advocate submitted that the purpose of Article 239AA was to “provide some kind of voice to the people, some kind of governance to the people.” The amendment was not just a structural addition to the Indian Constitution, but was based on the quality and fundamental principles of egalitarianism.

Mr. Subramanium said the Delhi High Court was in error when it bought the Centre's argument that Delhi was like any other Union Territory governed by parliamentary laws under Article 246 (4) and there was no need to give the Delhi government any elbow room.

Unlike other union territories like Puducherry, Delhi was recognised as “special” through a constitutional amendment. Article 239AA provided the Delhi Legislative Assembly the same powers as any other State legislature. The 69th Constitutional Amendment was passed to create “legislative accountability” through a democratically elected government, Mr. Subramanium argued. The Legislative Assembly could make laws for any part of Delhi, except in subjects of public order, police and land.

Mr. Subramanium evoked Article 73 of the Constitution to note that Article 246 (4) was subject to the provisions of Article 239AA.

“We are not contesting parliamentary supremacy. We acknowledge it. But still there must be an elbow room for the Legislative Aseembly of an elected government to function... Everything we do does not require the concurrence of the LG,” he submitted.