The Supreme Court on Wednesday handed a major victory to Delhi Chief Minister Arvind Kejriwal in his bitter power tussle with the Lieutenant Governor, ruling that Anil Baijal has no independent power to take decisions and is bound by the elected government's advice.
The ruling vindicates Kejriwal, who has long accused Baijal of preventing him from functioning properly at the behest of the Centre. It also lays down for the first time clear guidelines for the LG’s conduct, and delineates the powers of the two branches of the executive in Delhi, which does not have the status of a full state yet elects its own MLAs and government.
Some of the key points from the judgment read out by Chief Justice Dipak Misra:
- The court concluded the L-G is bound by the aid and advice of the Council of Ministers. Here is how:
- All citizens are regarded equal. “Nobody can impose his or her view on others.”
- The SC held that the legislature is elected by people, while the executive is responsible to the Council of Ministers. Hence, a “Constitutional morality” argument was taken, saying that this morality works as a check against lapses.
- The next step was the “Constitutional objectivity” argument. Here, it cited the famous Indra Sawhney case to hold that checks and balances are integral to the Constitutional scheme.
- It said that the framers of the Constitution left many a thing unwritten, by reposing immense trust on the Prime Minister. These silences in the Constitution, it held, were a part of Constitutional governance and “Constitutional Renaissance” would arrive if the governance path is followed.
- The judges cited Dr BR Ambedkar’s observation that the “Constitution is workable; it is flexible enough and it is strong enough to hold the country together in wartime and in peacetime.”
- The crux was that all positions of power are “in trust”. This was the court’s way of reminding both sides that no one institution is supreme. “Each member of the Cabinet has a personal responsibility to conscience and responsibility to government.”
- This is important because the court next interpreted what “aid and advice” of the Council of Ministers means to the L-G. It held that aid and advice is essential and binding, subject only to the proviso that allows the L-G to make a reference to the President. He cannot act independently and has to consult the Council of Ministers.
- The court observes: “The growth of democracy depends on good governance in reality…” and that this is the ultimate aspiration of people.
- The other observation was that “negotiation and coordination” lie at the root of harmony required to iron out differences between the union and the state.
- “In exercising their authority within their spheres there should be a perception of mature statesmanship. This requires continuous and seamless interaction between Union and State governments.”
- In 1911, Delhi became capital of India, headed by a Commissioner and then known as “Chief Commissioner’s Province.”
- In key legislations of that era, in 1919 and 1935, Delhi was seen as a centrally-administered territory.
- In 1950 Delhi became a Part C state but in 1951 this category was abolished. All C-states got their own Legislative Assembly. Delhi did not have powers over public order, police, public utility authorities, lands and buildings and over offences and court jurisdictions related to these subjects.
- In 1956 the States Reorganisation Act was passed along with the 7th Amendment to the Constitution. Now Delhi became a Union Territory. This means, it was headed by an Administrator appointed by the President.
- In 1966 the Delhi Administration Act came into the picture, giving Delhi a Metropolitan Council with 56 elected and 5 nominated members.
- In 1987 the Balakrishan Committee held that Delhi has a “special status” within the Constitutional scheme. This is at the heart of the dispute the Supreme Court heard today.
- In 1987 Delhi was a Union Territory with a Legislative Assembly and a Council of Ministers. The Balakrishan committee held that because Delhi is the seat of power therefore the division of responsibilities in the usual Constitutional scheme—union, state and concurrent lists—would create difficult situations. It also held that Delhi belongs to the whole nation and thus the union should have space to intervene in day-to-day affairs if Delhi is given statehood.
- Yet, Balakrishan committee recommended that the Constitutional pattern should be “more or less” followed in Delhi. There would be a head of Administration and a Council of Ministers answerable to the Legislative Assembly.
- The Committee also notes that the administrator could be the L-G, who would be expressly required to function on the aid and advice of the Council of Ministers. This is virtually the cabinet system with the implication that Delhi’s ministers would take every executive decision.
- This scheme was modified for Delhi so that the aid and advice would not be required for judicial or quasi-judicial functions of the Administrator (L-G). Still, the aid and advice would only be for matters in which the L-G has powers to make laws.
If there are differences:
- Generally the administrator is merely a figurehead. But Article 239 says that the President, through the administrator, was ultimately responsible for good administration.
- Hence, Balakrishan Committee notes that the Administrator in Delhi’s scheme of things had a “somewhat more active part” while the President would have the final say.
- This was the scheme provided for in 1951, 1963 and also in 1978.
Scenario after 1991:
- In 1991 the 69th Amendment introduced Articles 239AA and 239AB in the Constitution.
- This is also what was disputed in court: If Delhi has a Legislative Assembly and a Council of Ministers does that imply a Westminster-style government since the 69th Amendment? If the LG holds sway here, does that go against the basic structure of the Constitution?
Delhi govt argument:
- Article 239AA no longer uses the old term, “assistance and advice” and instead uses “aid and advice”. Hence the L-G need not concur on every matter. Hence also, the L-G is bound by aid and advice of the Council of Ministers.
- The second contention was that the Government of Delhi has the sole power to take executive actions on all matters where the Delhi Legislative Assembly has powers to make laws. This is the “collective responsibility” argument put forward by Delhi. By this logic, on all but the three exclusions, Delhi government’s decisions would hold sway.
- The basis for this argument is the Constitutional provision that if A239AA is breached, then the President may suspend the Article. The conclusion is that if there is an elected government in Delhi then administration would have to be according to A239AA. This is the “federalism argument”.
- Delhi’s argument was that under Article 239AA Parliament gets legislative primacy in some areas. However, there is no corresponding provision in the Constitution which gives the central government primacy over the Delhi government’s executive powers. Thus, it was argued that even if the L-G has to take aid and advice of the Council of Ministers that would not be binding. If it were binding it would be unconstitutional.
- Exception to this rule: The L-G has discretionary powers. The Delhi government’s argument in court was that this exception would apply only when the Council of Ministers oversteps the areas prescribed to it.
Centre and L-G’s defence:
- They said that Delhi is a Union Territory headed by the L-G who represents the President, regulated by A239. Under this Article all Union Territories shall be governed by the President of India.
- Their plea was that the court should interpret this Article literally. It also cited Balashankar, saying that it made a strong case against full statehood for Delhi and that the 69thAmendment came about after this report was fully accepted. Hence, they said, that model still should subsist.
- That model would include limitations on the powers of Delhi’s Legislative Assembly.
- Since the exact phrase in AA239AA and 239AB is “L-G and his ministers”, that implies the LG is the one responsible for running Delhi government.
- The crux of this argument is that in Delhi legislative and executive powers don’t co-exist. It also implies the L-G can make his mind up independently of the Council of Ministers. Finally, the L-G’s discretion gives him a final say.
- These arguments are based on the understanding that Delhi’s status is special—not the same as other states.
For in-depth, objective and more importantly balanced journalism, Click here to subscribe to Outlook Magazine