Delhi Govt Vs LG Tussle:What Kejriwal’s Lawyers Argued So Far Before SC Constitution Bench

The Arvind Kejriwal-led Delhi government has almost completed its arguments before the Supreme Court Constitution bench, 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, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan is deciding who enjoys the supremacy in governing the national capital -- the LG or the Delhi Government? The hearing began on November 2.

Legal eagles representing the Delhi Government – senior advocates Gopal Subramaniam, P Chidambaram, Indira Jaising and Rajeev Dhavan have finished their arguments. Senior advocate Shekhar Naphade will commence his submissions on Tuesday when the bench will resume hearing. After that, the Centre is expected to begin arguments on behalf of the Lt Governor.

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.

Live Law brings you a summary of the submissions so far by each senior advocate (The sequence- the order in which they argued)

 GOPAL SUBRAMANIUM- LG only a titular head who has superseding powers only in matters related to police, public order and land. Cannot summon all files or paralyse governance by delaying decision making.

Delhi High Court has erroneously concluded that Lieutenant Governor of Delhi is not bound by the aid and advice of the council of ministers. This is against the basic features of the Constitution. It defeats the basic intent behind the 69th Constitutional amendment.

In 1991, the Parliament, through the 69th Amendment incorporated an Article 239AA (Special Provisions with respect to Delhi) into the Constitution.

It conferred the right upon the people of the NCT of Delhi to elect their own legislature and government to make laws under certain entries of the state list of the Seventh Schedule of the Constitution and execute these laws, respectively.

It stated that the Legislative Assembly of the NCT of Delhi "shall have power to make laws for the whole or any part of the NCT with respect to any of the matters enumerated on the state list, except matters with respect to public order, police and land".

Article 239AA underscores the accountability of the executive to the legislature, which is the essence of representative democracy. The accountability can be discharged by the executive only if it enjoys the power to execute the decisions of the legislature.

The power to execute the decisions of the legislature should be complete and not subject to the decisions of another authority which is not accountable to the legislature.

The laws and the budget passed by the Assembly need to be implemented in full, without any let or hindrance which requires complete powers to be vested in the council of ministers. This is the simple meaning of these key provisions in the Constitution relating to Delhi.

The Governor was interfering in day-to-day governance, which caused delay and had almost paralyzed governance.

He wants to give his opinion on every file. He wants to demonstrate supervening power. He also thinks he has powers to overrule decisions taken by the government without reference to President. Even the high court upheld the power and that is what actually hurt us.

Every file is being summoned. Direction is given to override final decision of the government. That is not permissible.

He cannot interfere with day-to-day governance. Summoning every file to take a decision - this is a serious issue. He is a titular head.

The Proviso to Clause (4) of Arcile 239 AA says that in case of difference of opinion between the Lt. Governor and his ministers on any matter, the Lt. Governor shall refer it to the President whose decision shall be final.  The crucial words are “on any matter”.

The Proviso follows the provision which vests in the executive power to aid and advice the Lt. Governor in the exercise of his functions in respect of all matters within the legislative jurisdiction of the Assembly. In our constitutional democracy, the Governor of a state can act only on the aid and advice of the council of ministers, except in matters which fall within his discretionary jurisdiction.  It simply means that final decision making is vested in the council of ministers. Since the same phraseology is used in clause 4, it would carry the same meaning.

Thus, the final decision-making power in respect of all matters in the State List and the Concurrent List in the NCT, except police, public order and land, is vested in the council of ministers.

If these words are interpreted to mean all matters within the jurisdiction of the council of ministers, then the Lt. Governor with the intention of making the govt. ineffective can discover differences on all matters and refer them to the President, which means the Central Govt., the Govt. of NCT will not be able to take final decision on any matter.

The council of ministers will effectively cease to be accountable to the Assembly and thus a serious constitutional crisis will arise. This interpretation will make the council of ministers inherently incapable of being responsible to the Assembly. This interpretation, therefore, should be discarded. The proper thing to do is read down these words to mean only the overlapping matters between the reserved list of the Lt. Governor and the general list.

Even when Article 239 AA (3) clearly demarcates the jurisdiction of the Assembly and the Lt. Governor, still there may be matters on which there can be differences in respect of jurisdictions. Such matters can be referred to the superior authority, the President. This interpretation will smoothen the functioning of the Govt. of NCT.

P CHIDAMBARAM- LG not the administrative head in most matters

The Lieutenant Governor of Delhi is not a “Viceroy”, but simply an agent of the President whose powers depend on the pleasure of the President.

 The decision to have an elected government in the national capital was made because the people had found it necessary.

The 69th Constitutional Amendment, introducing an elected government to the national capital, was passed by a very, very special majority of the people’s representatives because they felt that there was something deficient in the Constitution.

The Supreme Court has to look into what were the sentiments of the people to bring in these special provisions for Delhi. Your Lordships should not interpret the special provisions in such a way that it diminishes democracy. You should interpret the provisions to advance a republic and democratic form of government.

The Lieutenant Governor is making a mockery of democracy. He was either taking decisions of an elected government or substituting them without having any power.

As per various provisions of statutes, including the Government of National Capital Territory of Delhi (GNCTD) Act and the Transaction of Business of the GNCTD Rules, the LG is required to act as per aid and advice and, in case of differences, the president will decide and there is no third way. The LG has no power.

But what is happening is that the Lieutenant Governor is taking decisions and substituting the decisions of the elected government

What the L-G is doing is a mockery of democracy. Regarding referring a matter to the President, only those matters which deserved to be escalated to the President, should be referred. Otherwise, the President will be left with the administrative issues of Delhi only.

LG was not the administrative head in every matter. The policy decisions are the basis of an elected government and interference is "fine" if any decision is "ultra-vires" of the Constitution or the Act.

So far as the issue of transfer, posting of IAS, IPS and IFS officers are concerned, the power of Central government and the LG are already there.

INDIRA JAISING- Delhi Govt should be allowed to function smoothly, especially in the field of social welfare subjects

Has the Constitution of India or any law passed by Parliament declared Delhi as the capital of India? There was no reference in the Constitution or in any law that Delhi was the capital of India.

"Capital is not defined by any law. Tomorrow, the Centre can decide to move the capital to somewhere else. The Constitution also does not say the capital is to be Delhi. We know that the British moved the capital from Calcutta to Delhi. There is National Capital Territory of Delhi Act but it does not constitute Delhi as the capital of India," she said.

The crucial question before the bench was whether there could be two commands over National Capital Territory- Delhi government and the Union government.

I am not claiming that Delhi is a state as it has an assembly and a council of ministers headed by the chief minister. But like the executive powers of the states and the Centre are defined and made exclusive, a similar solution needs to be found for Delhi.

There has to be a division of executive power between the Centre and Delhi government so as to enable the Kejriwal government to function smoothly unimpeded by the Centre, at least in the field of social welfare subjects like women's welfare, employment, education, sanitation and healthcare.

Rajeev Dhavan- Delhi Govt has crucial powers. LG shall step in only in case of  emergency

 Parliament has the power to override Delhi Assembly, but this is the emergency legislative power.

Unlike UTs like Puducherry, Delhi has been given powers by the Constitution and its powers are not a gift from Parliament.

The constitutional provisions provided that the Delhi Assembly shall have the power to make laws on some subjects under the state list and on all subjects under the Concurrent list.

If there was no exclusivity attached to a subject, Parliament would have the power to make laws and if a subject fell under the exclusive domain of the states, the Union government could not have the legislative powers.

Parliament has been given overriding powers under Article 239AA only, so that it was not helpless if the state Assembly passes a ridiculous law.

Delhi has a responsible government and not a representative government like Puducherry, as it derived power from the Constitution.

If a government has to act purely on the basis of law then a government cannot govern... executive power rides with the legislative power. Every executive function and power cannot be provided in law. Elected chief minister has executive powers.

The court will have to decide who (Delhi or the Centre) has the primary executive powers.

Yes. Land, police and public orders fall in the domain of the Centre and the Delhi Assembly cannot make laws with regard to these subjects - Article 239AA and the GNCTD Act of 1991. But LG is just a delegatee of the President and can only act on his own in case of an urgency.

“The Lieutenant Governor cannot run Delhi. He has no role to run the affairs of Delhi. That role is assigned to the council of ministers headed by the Chief Minister. Nowhere in the Constitution has such power been given to the Lieutenant Governor.

“How can the Lieutenant Governor say that this officer will stay in a particular department or the officer needs to be transferred to another department? Delhi does not have its own public service commission though it has power to establish one but still it has not done so. The officers posted in Delhi are from all-India cadres of the IAS, IPS and IRS, and they listen to the directions of the LG,” she said.

The Lieutenant Governor can interfere in the affairs of Delhi only in two cases — if the state government crosses its powers or if Delhi is under some kind of a threat.

Dhawan cited the Jat agitation when lakhs of people from Rajasthan and other adjoining states poured in to the national capital.

“The Lieutenant Governor can’t pick and choose from the wide canvas of Delhi’s various allocations of business. If there is some disagreement between the council of ministers and the LG over some issue, then it has to be resolved through negotiations and if that too fails, then the President has to take a call.

There were instances when same parties ruled at the Centre and in Delhi and at that time simple request was enough to get the work done, but now different parties are at the helm and they are at loggerheads.

The AAP government said the aid and advice of the council of ministers has some meaning and it is not limited since it is from the elected representatives of the people. Dhawan said land, public order and police are with the Central government, but it cannot be stated that the Delhi government has no say.

There was once violence at Ramlila Maidan that took place during a protest led by yoga guru Ramdev against black money in 2011. In such cases when there is threat, chaos, and law and order problem, the Lieutenant Governor can step in.