Delhi Govt Vs LG:SC Questions Centre’s “Intervention In National Interest” Argument

The Supreme Court constitution bench hearing the Kejriwal government Vs Lt Governor turf war posed pointed questions to the Centre on its argument that “national interest” was the guiding principle for it to intervene in day-to-day affairs of the national capital through the Lt Governor.

It all began when the Centre through Additional Solicitor General Maninder Singh  told the five judge bench on Wednesday that the Delhi Government was denied exclusive executive control for running Capital’s affairs in ‘national interest’

But the bench gave the example of Mohalla clinics to question L-G’s interference and asked Centre, “Does everything that transpires in Delhi relate to national interest?”

The Arvind Kejriwal-led Delhi  government completed its arguments before the Supreme Court Constitution bench matter wherein it, through a batch of petitions, has challenged the August 4, 2016 judgment of the Delhi High Court that declared the Lt Governor as the "administrative head" and ruled that he is not bound by the aid and advice of the council of ministers, and enjoyed discretion in this regard.

The bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan is deciding who enjoys the supremacy in governing the national capital- The LG or the Delhi Government ? The hearing had begun on November 2.

Singh cited the intention of the Constitution makers to carve out Delhi as a Union Territory but with a Legislative Assembly and Council of Ministers.  He produced the S Balakrishna Expert Committee report which formed the basis for enacting Constitutional amendment Article 239AA giving special powers to Delhi.

He showed how the committee examined all possibilities and concluded that Delhi, though having an elected Government, cannot be allowed to have exclusive executive control in national interest for being the Capital.

Singh said, “The report conceived unfettered powers of the Union over the Capital due to the special interest in maintaining public order, rule of law and general administration.” For this reason, he added, that Article 239AA required Delhi Government to forward each proposal concerning Delhi to L-G, who had the right either to concur or object. In case of a difference of opinion, the matter was to go to the President for action.

ASG COUNTERS

Singh urged the court that what decision is in national interest cannot be looked into by the court as the only issue before the court was whether executive control of Centre is located within the Constitutional scheme. “I can show you from the Transaction of Business Rules that the procedure contemplated under the Constitution and the laws governing Delhi require that the L-G cannot be bypassed in any matter. Though Delhi government can propose decisions, the decision-making rests with Union”, argued Singh.

A union territory (UT) cannot be raised to the level of a state under the Constitution and it has to be administered by the President of India. Designation does not change status. A union territory (Delhi) remains a union territory and it is not equivalent to a state, the ASG argued.

The top court is hearing a clutch of appeals filed by the AAP government challenging Delhi High Court's verdict holding LG as the administrative head of the national capital. Singh said every UT was to be governed by the President and the power of the President does not diminish with regard to Delhi.

Citing various judgements to buttress his submissions, Singh said unlike states, the LG was not bound by the aid and advice of council of ministers and the ultimate authority lied with the President. The arguments from the other side (AAP government) has been that though I am a UT, but raise my level to the status of a state. This cannot be done, he said.

GIST OF CENTRE’S ARGUMENT BEFORE THAT

The elected Delhi government has law making powers pertaining to all issues other than police, public order and land but has to work in consultation with the Lt Governor, there has to be harmony the Supreme Court has said.

“Your argument prima-facie do not sound logical when you say that the state does not have any executive and that the aid and advice of the government is not binding on the LG. The issue is an elected government has some executive powers in respect of which they can make laws but they have to work in accordance with in consultation with the LG as per the conduct of business rules”, Chief Justice Dipak Misra, heading a five judge constitution bench said.

“Can the LG assume all the powers himself?? prima facie we feel LG cannot issue any orders on his own”, the CJI told Additional Solicitor General Maninder Singh, appearing for the Centre.

CJI’s remark came when the ASG said aid and advice of council of ministers of Delhi was not binding on the Lieutenant Governor (LG).

The Delhi government, harping on Article 239 AA which gave it special powers, is essentially seeking a judicial declaration on the boundaries of the constitutional relationship between the Delhi government and the Centre, in administering the national Capital.

• The national capital belongs to the citizens of India. They (Delhi government) say we are an elected government. Union of India is also an elected government. It (Union) has the supremacy so far as Delhi legislative assembly is concerned.


• Delhi was accorded special status among the union territories but it has not got entry as a state in the states' list. A union territory remains a union territory even if it has a legislative assembly.


• A union territory cannot be in the list of states under the Constitution. It would be undemocratic to say that the legislative assembly of Delhi will have the same power as the Union of India has.


• Article 239AA of the Constitution, which deals with power and status of Delhi, was a complete code in itself.


• Parliament has made it clear that Delhi was a union territory and there was no doubt about it


• Delhi government was empowered to take care of daily utilities of the national capital but the real administrative powers were vested with the Centre and the President.


• The Delhi government could not claim power and privileges of a state government as Delhi was a Union Territory


• Out of 650 files received by the Lt Governor in the last three years, there was a difference of opinion on only three cases.


• Delhi government is raking up a controversy to create disharmony among various institutions in its face-off with the L-G and the Centre over powers that it laid claim to but did not enjoy.


• Delhi government could not claim powers in violation of a constitutional scheme that set out a vertical division of power between the city government and Centre for administering the capital.


• Refuting allegations levelled by bevy of senior lawyers appearing for the the NCT government that the Centre is stalling day-to-day decision-making with the LG sitting on files, the Centre informed the bench that there was a difference of opinion in only three odd cases.


• They are admitting that it (Delhi) is not a state but claim power and privileges of a state. How is it possible? If it is not a state then it cannot claim privileges of a state. It can never become a state and its government cannot be said to be a state government. There is no exclusive executive power given to them.


• Representatives of the Delhi government were present in all meetings convened by the L-G and the allegation that the latter was responsible for it not being able to perform its functions was baseless.


• Constitution provided a harmonious scheme for balance of power among different institutions but the NCT government had created disharmony.


• There was a conscious decision by constitution makers to differentiate between state and UT and the latter cannot seek powers under various provisions if these had not been specifically mentioned.