Tussle Between the AAP Government and the Centre: Govt. of NCT of Delhi vs. Union of India

AUTHOR- Rahul Verma, Law Centre- 1, Faculty of Law, University of Delhi.

1. ABSTRACT

This case commentary will give a critical analysis of the landmark judgment Govt. of NCT of Delhi and Ors.Vs. Union of India. The case of Govt.of NCT Delhi and Ors.Vs. Union of India is a judgment where it was held that the Lt. Governor of Delhi is bound by the aid and advice of the elected government of Delhi and cannot interfere in every matter. The dispute between the Centre and Government of Delhi primarily revolved with the demarcation of powers. This paper will talk about the facts of the case, the arguments and reasoning from the parties which include the arguments from the appellant and the respondent, and the judgment. The facts of the case talk about how the dispute between the Govt. of Delhi and the Centre started and how it reached the Supreme Court. It is a trajectory of events. The issues deal with the primary issues on which the tussle revolved on. The arguments from the parties include the arguments from the appellant as well as the respondents. Both arguments include the constitutional provisions which are been violated, precedents which are being violated and the reasoning behind their arguments. The judgment includes the final decision by the constitutional bench and the rationale behind this decision.

2. FACTS OF THE CASE

o In April 2015, Delhi lieutenant governor Najeeb Jung said it was not binding on him to send files relating to police, public order, land and services to the chief minister of Delhi to which the ministry of home affairs declared through governmental notification that final decision lays in such matters lays in the hands of lieutenant governor himself.

o He further added that the Delhi Anti-corruption branch has no right to investigate central government employees.

o Later on Delhi government ordered a commission of inquiry to investigate CNG fitness scam to which the LG raised his objection since his consensus was not included.

o The ministry of home affairs declared the investigation & legally invalid and In December another commission of inquiry was set up to investigate an alleged scam in the Delhi and District Cricket Association.

o In January 2016, the Ministry of Home Affairs informed Jung that the commission was not valid because the Delhi government did not have the power to form an inquiry commission because Delhi was not a state.

o Later on the issue of administrative powers of the LG of Delhi in light of the special status of Delhi as a Union Territory , went to the Delhi high court and

o In August 2016, a divisional bench of the High Court of Delhi composed of Chief Justice G. Rohini and Justice Jayant Nath ruled that the LG had complete control of all matters regarding National Capital Territory of Delhi , and along with invalidating all the previous commissions set up by the Delhi government that were without the concurrence of LG and also upheld previous decisions of Ministry of Home Affairs.

o Though, it also pronounced that the LG was bound by the aid and advice of the Delhi council of ministers on matters related to the appointments of special public prosecutors.

o The primary issue that the 69th Amendment to the Constitution in 1992 added Article239AA, which mandated an elected Assembly for Delhi, which caused confusion with respect to the jurisdiction of the Delhi Government.

o The Delhi High Court in its judgment held that Delhi continues to be a Union Territory despite Article 239AA. It further held that the special provisions incorporated for Delhi do not overrule the effect of Article 239.

o Dissatisfied with the Delhi high court& decision, the Delhi government ministers Kejriwal, Sidonia and Satyendra Jain appealed to the Supreme Court of India.

3. ISSUES OF THE CASE

The tussle between the government of Delhi and the Centre revolves around the following issues

· Notification by the Ministry of Home Affairs dated 21st May 2015 which put “services” outside the power of the Delhi government. The notification gave the Centre the power related to “services”

· Another notification dated 21st May 2015 which restricted the Anti-Corruption Branch Police of Delhi to investigate servants of the Centre.

· Non approval of the revision of stamp duty payable on sale of agricultural land and special public prosecutors appointment by LG.

· Non approval of investigation of corruption allegation in Delhi& District Council.

· Non approval of the decision taken by the government for compensation to people for disruption in power supply

· Should Delhi be treated like a Union Territory with the Lt. Governor as its administrative head or as a Special State where the Lt. Governor is bound by the advice of the Chief Minister

4. RULES

Constitution- Article 12 , Article 239AA, Article 324 , Article 327, Article 329

Delhi Administration Act, 1966

Government of National Capital Territory Act, 1991 – Sec 41, Sec 45

5. ANALYSIS

It was held that according to the Article 239AA of the Indian constitution, although the government had to keep lieutenant governor informed of its decisions, Delhi's lieutenant governor had no independent decision-making powers and had to follow the aid and advice of the chief-minister-led council of ministers of the Government of Delhi on matters the Delhi Legislative Assembly could legislate on, viz., all items on the State List (items on which only state legislatures can legislate) and the Concurrent List (items on which both the Parliament of India and the state legislatures can legislate) barring police, public order and land. It was added that on matters referred to him/her, the LG was bound to follow the orders of the president.

6. RATIO DECIDENDI OF THE CASE

Ratio Decidendi is commonly defined as the reasons for the judgement. It basically refers to the material part of the judgement without which the judge would have been unable to reach to the present conclusion of the case.

Before stating the ratio of the case and the reasons for the same, let’s first look at Section 41 of Government of National Capital Territory Act, 1991- “ Matters in which Lieutenant Governor to act in his discretion:”

i) Certain provisions relating to Lieutenant Governor and Ministers

(1) The Lieutenant Governor shall act in his discretion in a matter—

(i)which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or

(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions.

(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.

(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.

ii) Administration of Union territories and Special provisions with respect to Delhi

Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through 69th constitutional amendment by the Parliament, thereby providing Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concerns to common man. That’s when Delhi was named as National Capital Region (NCT) of Delhi.

There is no doubt that common men of Delhi are the sufferer on various counts; but we need to examine whether there is a role of Article 239AA of the Constitution in such suffering. What we see today, is it an outcome of Article 239AA? With no political axe to grind, relevant provisions of Article 239AA must be understood in true sense.

Article 239 should be read with Article 239 AA. Article 239 provided that the administrative powers should be with Delhi.

In Article 239 and 239 AA it has been stipulated that the council of ministers should have the right to exercise executive powers. As per Article 239AA – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters. For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have power to make laws for NCT of Delhi.

The respondent argue that in the judgment of Ram Jawaya Kapur the principle laid down says that there is existence of legislative power co-extensive with executive power, which is with respect to only the Union and the States and is not applicable to Union Territories

There is a distinction between Article 239 AB and Article 356. According to Article 356, the President in case the constitutional machinery fail shall obtain all the powers of the state government and the powers of the Governor. In the case of union territories, this clause is not applicable as the executive power is vested in the President. Article 239 AA does not provide any assumption of power rather it is suspension of operation of Article 239 AA in case the President feels that is necessary

In reading of Article 239 AA and 41(2) of the 1991 Act it is mentioned that if there is a matter where the LG has the liberty to act in his discretion then his discretion is final. The respondent has also referred to TejKiran Jain and Ors. v. N. Sanjiva Reddy and Ors. (1970) 2 SCC 272. In this case the phrase “any matter” should be interpreted as “every matter” and the word “anything” refers to “everything”.29 The national capital belongs to the people of India and not only to those living in Delhi.

iii) Duties of Chief Minister In Delhi in respect of the Lieutenant Governor

It shall be the duty of the Chief Minister—

(a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation;

(b) to furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for; and

(c) if the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

7. OBITER DICTA OF THE CASE –

After reserving its judgment for almost 7 months the Supreme Court on July 4th, 2018 gave a historical judgment and declared that the Lt. Governor of Delhi is bound by the aid and advice of the Council of Ministers except in matters of land, police and public order. There were three and separate and concurring judgments in which CJI DipakMisra wrote for himself and Justice A.K Sikri and Justice Khanwilkar. Justice DY Chandrachud and Justice Ashok Bhushan gave separate judgments but shared the same opinion.

CJI Misra while reading his judgment said that by in no stretch of the imagination can NCT of Delhi can be accorded the status of a state under the present constitutional scheme and this is clear as noon. There is no room for ‘absolutism’ or ‘anarchy’ in the Constitution. Concepts of pragmatic federalism and federal balance are to prevail by giving the NCT of Delhi some degree of necessary independence. This is totally based on the limitations imposed by the Constitution. CJI Misra said that the relationship between the Council of Ministers and the LG should be a reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness Justice Chandrachud said that the LG has to know that the Council of Ministers which provides aid and advice is elected to serve the people and represents both the responsibilities and aspirations of democracy. Justice Chandrachud said that in case there is a dispute between the Council of Ministers and the LG it must be resolved through dialogue and discussion. Justice Chandrachud also referred to the Balakrishnan Committee report. Justice Chandrachud also said that the LG cannot act as an obstructionist just because he is the administrative head of Delhi. Real power and substantive accountability are vested in elected representatives in democratic government. Article 239(4) must be construed in such a way that “any matter” is not “every trivial matter “Justice Chandrachud also added in his 175-page concurring judgment that it is the Council of Ministers which takes substantive decisions Justice Chandrachud further added that pertaining to the administration of affairs of Delhi and the LG must be made aware of all matters under the Transaction of Business of the Government of NCT of Delhi Rules, 1993; the LG must be kept duly apprised on all matters pertaining to the administration of affairs of the NCT. The Lt. Governor should be made aware of every proposal, agenda, and decisions taken by the Delhi government according to the rules.3

Justice Bhushan said that the interpretation of the constitutional provisions should be based on the needs of the time. He said that the LG’s powers under Article 239 AA “should be exercised on matters of constitutional relevance”. The bench also held that without due application of mind the LG should not act in a “mechanical manner” so as to refer every decision of the Council of Ministers to the President. Justice Ashok Bhushan further wrote in his 123 page judgement that the Delhi Legislative Assembly represents the elected representatives “their decision and opinion must be respected in all possible way” The 3 justices concluded that in a democratic republic the will of the collective is reflected by the elected representatives. The collective is supreme. Constitutional morality invalidates power held in the hands of the few. Constitutional governance has two major principles which are fiduciary nature of public power and the system of checks and balances. There should be a harmonious coexistence between Union and the state governments and there should be interdependence to prevent constitutional discord. There should be a collaborative federal architecture. The status of Delhi is sui generis and is a class apart. The status of Lt. Governor is not that of a Governor of a state. He still remains the Administrator. The parliament has the power to make laws for the NCTD with all matters given in the state list and the concurrent list. This is possible by the insertion of Article 239 AA (3). The Delhi Legislative Assembly has the powers to make laws on those subjects which are in the concurrent list and the state list excluding police, land and law and order in the state list. But if the Parliament does make laws on subjects who fall in the State list or Concurrent List then the State must conform with the law made by the Parliament. Thus the Parliament has the power to override. The executive power of the Government of NCTD is coextensive with the with the legislative power of the Delhi Legislative Assembly when there was a conjoint reading of clauses 3(a) and 4 of Article 239 AA. Requiring prior concurrence of the Lt. Governor would destroy the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239 AA of the Constitution. It was said by the bench that the Lt Governor should not have any hostile attitude towards the Council of Ministers. He should act as a facilitator. The bench also said that respect needs to be given to the government and the constitutional functionaries and the authority in power must realize that they are working for the benefit and the welfare of the people. Either the state or the LG should feel they are being lionized and must realize they are performing constitutional duty.

8. CONCLUSION

The Supreme Court judgment will lead to more litigation. Put such kind of faith in the constitutional functionaries involved in the administration of Delhi appears misplaced. It now depends on the parties’ wisdom how they interpret Article 239 AA (4) in the administration of Delhi. The judgment only focuses on principles of constitutionality. It does not talk about how it will be applied practically which would lead to more litigation.46 So yes the judgment even though has been given but there is still a lot of tension between the Delhi government and the LG.