In a major boost to the Arvind Kejriwal government in Delhi – which has been engaged in a war of attrition with Lieutenant Governor Najeeb Jung on sharing of power in the national capital – the Supreme Court on Wednesday held that the government elected by the people had certain powers and rights. However, the apex court said it would only say more after hearing arguments from both parties and listed the matter for January 18, 2017.
The AAP government had moved the apex court against a Delhi high court ruling in August this year in which it had reiterated that the lieutenant governor was the administrative head of Delhi and enjoyed wide discretionary powers – a contention that had been challenged by the AAP government.
Prior to that in July, the Supreme Court had declined to entertain the AAP government’s plea to restrain the Delhi high court from pronouncing a judgment on the merits of the dispute, without first deciding whether it has the jurisdiction to do so.
In its special leave petition before the Supreme Court, the AAP government had challenged the high court order which had declared that the lieutenant governor is the administrative head of the government of Delhi. Also, the high court had noted that the lieutenant governor was not required to act on the advice of the Delhi cabinet and had the power to refer issues of dissent between him/her and the elected government to the president of India.
In the petition, the AAP government said that the rationale of the high court judgment was “deeply flawed”. It argued that “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.”
The petition contended that the high court’s “interpretation is completely contrary to the democratic spirit and the basic structure of the constitution. It is also contrary to the plain and conscious legislative scheme.”
Further, referring to its impact on the conduct of business, appointments and deployment of officers, the petition stated that the interpretation in the high court judgment ran “contrary to the clear scheme of the constitution and the GNCTD (Government of National Capital of Delhi) Act. This interpretation has not only the potential but also the practical result of bringing accountability and democratic administration to a virtual standstill.”
Elaborating on the issue, the Kejriwal government charged that “immediately after the impugned judgment, the LG has brought accountable governance to a halt, by either refusing to clear files relating to day-to-day administration or substituting his own decision for that of the council of ministers. From grant of old age pensions and the setting up of Mohalla clinics, to the appointment of the chief secretary, the LG has taken over a whole range of functions entrusted to an elected government by the constitution.”
In light of such a situation having arisen following the judgment, the AAP government said if it would be allowed to stand, “it would, by implication, suggest that even the prerogative of allocation of portfolios to ministers by the chief minister can be usurped in this fashion by the LG.”