A FIVE-MEMBER Constitutional bench of the Supreme Court on Wednesday unanimously held that the Lieutenant Governor of Delhi has to act according to the advice of the cabinet of the government of the Union Territory. The bench, headed by Chief Justice Dipak Misra, decided that the Lieutenant Governor of Delhi had no “independent decision-making power.” His status was not that of a governor of a state, rather he remained an administrator, in a limited sense, working with the designation of Lieutenant Governor. It is now clear that the LG did not enjoy overriding powers to scuttle the initiatives taken by the elected government. The situation reached grotesque proportions when Chief Minister Arvind Kejriwal with three other colleagues sat on a fast in the lounge of the Lieutenant Governor’s official residence, seeking an appointment with him, which he refused. Ever since the Aam Aadmi Party (AAP) was voted back to power in 2014 it has been at loggerheads with the LG appointed by the central government. The AAP government had accused the LGs of preventing it from functioning at the behest of the Centre, prompting it to reach out to the Supreme Court to seek “justice.”
The court observed that the Constitution was “constructive” and that there is no room for absolutism and that there was no space for anarchy. The verdict also answered contentious issues involving interpretation of Article 239 AA dealing with the powers and the status of Delhi, which would now be considered by another bench of two or three judges to adjudicate the matters on which there was a tug of war between the Delhi government and the Centre. Making it clear that the LG was not a “titular head,” the court said he should not emerge as an “adversary having a hostile attitude” towards the council of ministers but rather act as a facilitator. With the topmost court of the country having clearly stated that the LG has not been entrusted with any independent decision-making power, the verdict would apply to other Union territories, such as Puducherry where too a conflict between Lieutenant Governor and the elected government had built up. Lieutenant Governor Kiran Bedi of Puducherry must stop acting like an office of power that could overrule the elected government’s decisions. She too, like the LG of Delhi, will be bound by the advice of the elected government. The court has kept room for differences of opinion between the LG and the council of ministers. However, the court warned, differences should have a “sound rationale” and there should be no “obstructionist” attitude behind them.
Justice D Y Chandrachud, who wrote a separate concurring verdict, has stated that the LG must bear in mind that it is not he, but the council of ministers which takes substantive decisions. Justice Ashok Bhushan, also a part of the bench in concurring judgment, said as the Delhi Legislative Assembly is made up of elected representatives their opinion and decisions have to be respected in all cases, except where LG decides to make a reference to the President. With ample clarity in the court judgement, it is quite evident that the LG enjoyed no special powers and that he should work towards facilitating the decisions taken by the cabinet. The verdict implies a balanced federal structure that mandates that the Union does not usurp all powers and the states and Union territories enjoy freedom without any unsolicited interference from the central government. It is also a message to the central government not to allow LG to undermine the authority of the elected representatives of Delhi or other Union territories.
The conflict between the Kejriwal government and the LG has been so bitter it might take some time before the LG can reconcile to the fact of being reduced to an administrator from governor! Following the apex court order, the Delhi government sought to empower Chief Minister Arvind Kejriwal to transfer and post senior officers and sent the decision to the Secretary, Services for implementation. The services department shot back a five-page note expressing inability to carry out the order, arguing that the LG continued to be in charge of this key department and the order cannot be implemented unless the Ministry of Home Affairs notification of May 2015 giving the charge to the LG was overturned. This shows that the apex court order might not be the end of the conflict: the Kejriwal government will have to fight some more battles with the LG and the central government. Let us hope the Modi government does not encourage the LG to undermine the federal structure of governance any more.