Delhi power tussle: SC rules in favor of the CM, says L-G bound by advice of ministers

NEW DELHI: Stating that a democracy leaves no room for absolutism or anarchy, a five-judge Bench of the Supreme Court unanimously held on Wednesday that the Lieutenant Governor of Delhi is bound by the “aid and advice” of the government elected by the people, and that both have to work in mutual harmony.

Justices AK Sikri and AM Khanwilkar, along with the Chief Justice of India Dipak Misra, held that the Lieutenant Government is bound by the Arvind Kejriwal-led government, which holds the public mandate.

In his separate opinion, Justice DY Chandrachud observed, “Real authority to take decisions lie in the elected government. This is the meaning of ‘aid and advice’. Titular head (LG) has to act in accordance to aid and advice. There is no independent authority with the LG to take decisions except in matters under Article 239 or those outside the purview of the NCT government.”

“Every ‘trivial difference of opinion’ between the LG and the NCT government cannot be referred to the President for a decision. The issues referred should be of substantive or national importance. In this regard, Chief Justice interpreted the phrase ‘any matter’ in Article 239AA(4) as not ‘every matter’. Elected representatives would be reduced to a cipher if ‘any matter’ in Art 239AA (4) is interpreted as every matter of governance. This Constitutional Court would be doing disservice if an elected government is reduced to a mere form without substance,” Justice Chandrachud wrote.

Chief Justice wrote that a reference to the President was only an exception and not the general rule. In this context, even in case of differences of opinion, the LG and the NCT government should act with constitutional morality and trust for each other. LG cannot act without applying his mind and refer everything to the President.

The NCT government need only to inform the LG of its “well-deliberated” decisions. The government need not obtain his “concurrence” in every issue of day-to-day governance.

CJI Dipak Misra adhered to the previous judgment of the Supreme Court in NDMC versus State of Punjab to deduce that Delhi is not a ‘State’. The judgment also held that the Lieutenant Governor of Delhi is not a ‘Governor’ but only an ‘administrator in a limited sense’.

“Real and substantive power lies with the elected representatives in a democracy. They owe responsibility to the legislature,” Justice Chandrachud observed, reiteatring the Chief Justice that “a ‘mixed balance’ has to be struck considering the special status of the Delhi and ‘fundamental concerns’ as Delhi is the National Capital.”

Justice Chandrachud also remarked that “liberty and democracy are fragile concepts which need to be protected at all costs against absolutism.”

The Supreme Court’s judgment came on the appeals made by CM Arvind Kejriwal’s government against the judgment of the Delhi High Court held on August 4, 2016, which proclaimed that the LG holds “complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the LG.”