LG Vs Kejri: Elected Govt Should Have Some Powers Otherwise It Can’t Function: SC

“The elected government in Delhi should have some powers otherwise it cannot function. The matter needs to be decided fast” : Bench of justices A K Sikri and A M Sapre.

After three adjournments, the Supreme Court today finally began hearing the appeals filed by Delhi’s Kejriwal government against the August 4 verdict of the Delhi High Court which concluded that the national capital was a union territory and gave primacy to Lt Governor Najeeb Jung in its administration.

During the hearing, significantly, the bench headed by Justice A K Sikri orally observed that the Delhi government should have some powers otherwise it cannot function.

“ The elected government in Delhi should have some powers otherwise it cannot function. The matter needs to be decided fast”, the bench of Justices A K Sikri and A M Sapre said.

The bench listed the matter for final disposal on January 18 and said since it will hear the matter in detail, no interim orders will be passed on various interim applications as of now

At the outset, senior counsel and former ASG appearing for the AAP government argued that a nine-judge Bench of the court, in 1996, in the NDMC versus State of Punjab case had recognised Delhi as a Union Territory for taxation purposes and therefore the matter was well settled

Subramaniam argued that the “rationale” of the HC judgement was deeply flawed.

“The impugned judgment holds that the LG need not abide by any decision of the Council of Ministers at all, and that any decision of the Council of Ministers can take effect only upon the LG’s clearance. The nomenclature of ‘Union Territory’ as distinct from that of ‘State’; conferment of a wider discretion upon the LG than that available to a Governor of a State; and the proviso to Article 239AA (4) enabling the LG to refer to the President, a difference of opinion between himself and the Council of Ministers on any matter, are factors that have led the High Court to conclude as aforesaid”, he said.

“It follows therefore that, that civil administration and “services” are within the province of the Council of Ministers, and the LG cannot be given any overriding discretion in these matters. However, the impugned judgment has held that every single decision of the executive government of Delhi needs the clearance of the LG. It has also taken the view that it is open to the LG to refer any decision of the Council of Ministers to the President under the proviso to Article 239AA, whereupon the LG will acquire his own interim discretion in all such matters. Thus, in effect, the impugned judgment has conferred upon the LG virtually unguided and total discretion on all matters”, the government argued.

The government had on September 9 suffered a setback when the SC refused to stay the August 4 verdict of the Delhi High Court.

Five top legal eagles roped in by the AAP government—senior lawyers and constitutional experts K K Venugopal, Gopal Subramanium, P P Rao, Rajeev Dhavan and Indira Jaising vehemently argued for a stay saying the HC verdict had tied up the hands of an democratically elected government and the Lt Governor was proceeding with several illegal acts. But a bench of justices A K Sikri and N V Ramana was not impressed.

Subramanium had then also referred to Jung constituting a three-member panel to examine over 400 files containing “infirmities and irregularities” in the decisions taken by the government. “The functioning of the committee also needs to be stayed. Legitimacy cannot be given to it till the issue is decided by this court”, he argued.

The AAP maintains that if an elected government did not have control over the mechanism to weed out corruption through the Anti-Corruption Branch (ACB), then its functioning would be ridiculed by the people who had given it the mandate to govern for five years.

The Delhi government said it was a settled constitutional principle that the figurative head of a state, like governor or LG, was bound by the decision of the council of ministers headed by the CM “but the HC chose to tread a new constitutional path and declared that the LG had the discretion whether or not to heed the council of ministers”.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.