Real power with the elected government: How SC laid the rule in AAP vs L-G tussle

Expressing unhappiness with the recent turf war in Delhi, CJI Misra said that a state fails when its governance fails.

 |  9-minute read |   04-07-2018
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Pronouncing its long-awaited judgement on the Delhi government-Lieutenant General power tussle, the Supreme Court on July 4 ruled that the L-G cannot interfere with every decision of the elected government.

The verdict by a five-judge bench takes a middle path, though it is tilted towards the elected government, and notes that neither authority should feel it has been lionised.

Better times ahead? The SC has said neither the CM nor the L-G should feel 'lionised'. The SC has said neither the CM nor the L-G should feel 'lionised'.

Mutual respect is the key, says the bench, adding that the L-G must work with the elected council of ministers and respect its decisions.

The court has said that the concurrence of L-G is not required in all matters. The LG cannot act in a mechanical manner and refer all decisions of the council to the President.

The LG’s role cannot be obstructionist, the bench has said, adding that the court has to adopt an interpretation of the Constitution which is in consonance with democratic principles. 

CJI Dipak Misra said that the L-G cannot act independently and must take advice from the council of ministers. The council has to inform the L-G of its decisions. The CJI says both the state and the Union must act in harmony and enjoy a healthy relationship.

Expressing unhappiness with the recent turf war in Delhi, CJI Misra said that a state fails when its governance fails.

Real power must lie with the elected government, said the Supreme Court, adding that the L-G is not independent, and Delhi is not a full state. While the Parliament has the power to make laws for Delhi on subjects on the state and the concurrent list, the elected government can also make laws on all subjects expect land, police and public order. If the Parliament makes a law, the executive power of the state must conform to that.

The Supreme Court also observed that the L-G must act on the aid and advice of the council of ministers in implementing the President’s decisions. Restoring the balance of power in Delhi, CJI Dipak Misra barred L-G Anil Baijal from acting independently on state-related matters.  He was categorical in noting that the L-G should not stall the decisions of the council of ministers.

The judges also said that the L-G hasn’t been entrusted with independent decision-making powers, and that the state should enjoy freedom from unsolicited interference. “Popular will can’t be allowed to lose its purpose,” the bench said.

the court has to adopt an interpretation of the Constitution which is in consonance with democratic principles. The bench said the court has to adopt an interpretation of the Constitution which is in consonance with democratic principles.

Interestingly, though the judges differed on the extent of the powers of the LG, they were all unanimous on the primacy of the elected government.

Why the conflict arose

In August 2016, the Delhi High Court upheld Article 230 of the Constitution, stating that the Lieutenant-Governor remains the administrative head of the National Capital Territory.

Under Article 239 of the Constitution, every Union Territory is under an administrator (which would be the position of a governor). The administrator governs on the directions of the president.

After amendments, under Article 239AA, Delhi was given special provisions and was deemed a National Capital Territory. According to 239 AA, the administrator of the NCT was the Lieutenant-Governor. The L-G, who would be appointed by the president, would be advised by a council of ministers. 

In December 2017, hearing a clutch of pleas on the issue of who enjoys supremacy in administration, the Supreme Court, after hearing arguments from both the AAP government and the Centre for 15 days in over four weeks, reserved its verdict.

Wrapping up the rejoinder submissions in the court during the hearings in 2017, the AAP’s counsel, Gopal Subramanium, told the bench that the chief minister and the council of ministers had the legislative power to make laws as well as the executive authority to enforce the enacted statutes.

Had that not been the intention, there was no need to frame Article 239AA (which deals with power and status of Delhi under the Constitution), Subramanium said, adding that the national capital could have also been governed by Article 239A, meant to deal with the Union Territory of Puducherry.

Immediate fallout of SC verdict

Rejoicing in the AAP camp has started already, as can be seen from the tweets and statements of their leaders down the line. CM Kejriwal has tweeted, “A big victory for the people of Delhi. A big victory for democracy.”

The BJP and the Congress have gone silent for now.

Sheila Dixit, former Delhi CM, as repeated her old stand: “Delhi is not a state, so both the Delhi government and the L-G should work in tandem.”  

There has been no official reaction from the L-G so far.

Interestingly, the IAS officers’ forum has welcomed the SC verdict. “Civil servants don’t belong to any political party. They cannot exercise the discretion to prefer one party over another. The Supreme Court is the highest court of India and it has reiterated constitutional provisions. This is a victory for the Constitution and the express provisions of Article 239 AA,” says K Mahesh, senior bureaucrat and president of the Delhi Administrative Officers’ Academic Forum.

Earlier, the AAP government had alleged “strike and non-cooperation” by IAS officers, and the CM had gone on a nine-day sit-in dharna at the L-G’s house, asking for his intervention to end the strike.

Kejriwal with his ministers had staged a sit-in protest at the L-G's residence. Recently, Kejriwal with his ministers staged a sit-in protest at the L-G's residence.

It is interesting to note that the transfer of bureaucrats will now return to the state government, though there is no word on the vexed issue of the Anti Corruption Bureau, taken away from the Delhi government some time back.

Several key welfare measures are pending due to the government-L-G tussle: expansion of 165 Aam Aadmi Mohalla Clinics to the promised 1,000 across Delhi, door-step delivery of government benefits and services to Delhi citizens (ration, birth and death certificates, etc.), CCTVs in key areas and inside government buses, expansion of state government-funded education infrastructure, legislation of the Jan Lokpal Bill to get an ombudsman against corruption in public offices, and also the Swarajya Bill, which allows mohalla committees to decide on local development work and certify their quality and completion.

It is now expected that most of these will get a strong fillip and move ahead.

Long-term impact: Boost to Delhi statehood agitation

On July 1, the Aam Aadmi Party had organised a huge rally at the city’s Indira Gandhi Stadium to demand statehood for Delhi. The party has made the demand its major electoral plank in the 2019 Lok Sabha and 2020 Vidhan Sabha elections.

AAP volunteers have also embarked on a door-to-door campaign to get one million Delhi citizens support the demand for statehood.  

This had been an electoral promise of the party in 2015 too, and to this end, the AAP government had passed a resolution in the state Assembly, calling for full statehood and passing a draft bill for the same. Kejriwal had earlier called for a keenly debated referendum in the city-state.

The draft bill passed by the AAP government says that Delhi, being the national capital, can be divided into two parts. What is commonly known as Lutyens’ Delhi and is administratively governed by the NDMC Act should be under the direct control of the central government, given the sensitivities involved and the experience of national capitals the world over.

This resolution then says that the rest of Delhi can no longer be denied its full statehood right. It notes that a Bill introduced by the-then deputy prime minister and home minister, LK Advani, in the Lok Sabha on August 18, 2003, and fully endorsed by the Parliamentary Standing Committee on Home Affairs, then headed by Pranab Mukherjee, has to be the guiding document for this.

The current Supreme Court verdict, strengthening the role of the elected government, will indirectly fuel the movement of complete statehood for Delhi minus the New Delhi NDMC area, which is the seat of the central government and houses international bodies and embassies.

Interestingly, the 2009 and 2014 Delhi Assembly poll manifestos of both the Congress and the BJP included the promise of Delhi statehood on similar lines.

While the Congress continued with its promise in 2015 too, the BJP changed its stance. It decided to not release a manifesto for the Delhi polls and instead released a “vision document.” The indecision over Delhi statehood was the real reason behind the vision document.

Fundamental constitutional questions:

The questions that the AAP government’s continued conflict with the Centre has thrown up are fundamental to the functioning of an electoral democracy. Does an elected government have the right to make policies and implement them? Now that this question has been decided in favour of the elected government, the statehood movement is bound to move ahead.

The Delhi state is governed by the elected state government, the nominated L-G, the Delhi Development Authority under the LG, the South Delhi Municipal Corporation (SDMC) under the Centre, all land under Central Urban Development Ministry, the Delhi Police under the central home ministry, services of all staff under the home ministry, the Delhi Cantonment under the defence ministry, and civic affairs under other municipal corporations.

This maze of multiple agencies, with overlapping authorities as well, is a natural breeding ground for misgovernance, miscommunication, and non-cooperation, which stalls work.

Response of the Opposition

Interestingly, unlike the last time around during Kejriwal’s dharna in the winter of 2014, this year, a plethora of regional parties – significantly SP, RJD, JDU, JDS, RLD, NCP, TMC, TDP, TRS, DMK, CPI and CPM – have expressed complete support to his sit-in at the L-G’s house and backed his stand on the Centre-state conflict, statehood, and independence in the functioning of the elected government.

Four chief ministers had recently backed Kejriwal in his struggle against the central government. Four chief ministers had recently backed Kejriwal in his struggle against the central government.

On the other hand, the Congress is seen on the same side as the BJP.

The Congress’ stands stems from the fact that the AAP has unseated the party to come to power, is the major challenger of the Congress in Punjab, and is focussing on building its organisation bottoms-up in states that are a two-way fight between the Congress and the BJP.

But the current stand of the Congress would make it suspect in the eyes of various regional parties, and is not in the interests of its 2019 grand alliance plans.

The Supreme Court verdict has surely enhanced the stock of the AAP among the regional opposition parties of India, and the Congress will emerge the biggest loser if it is seen as antagonistic to the cause of Delhi statehood.

Also read: How elections will decide the fate of GST

 

 

Writer

Ujjwal K Chowdhury Ujjwal K Chowdhury @ukcglobal

The author is currently the Pro Vice Chancellor of Adamas University in Kolkata and former dean of Symbiosis and Amity Universities.

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