Focus: GS-II Governance
The Constitution Bench of the Supreme Court in Government of NCT of Delhi vs. Union of India (2018) said: “The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi.”
NCT of Delhi vs. Union of India: Issues and possible solutions
- The judgment enunciates lofty principles concerning constitutional morality, co-operative federalism, constitutional conscience, pragmatic federalism, etc.
- It tells the State government that it should remember that Delhi is a special category Union Territory and lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
- The Supreme Court has settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the Lt. Governor is BOUND TO ACT ON THE AID AND ADVICE EXCEPT IN RESPECT OF ‘LAND’, ‘PUBLIC ORDER’ AND THE ‘POLICE’.
- The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has NO power to overrule the decisions of the State government.
- In the operationalisation of Article 239AA (4) (proviso) which says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision (and “President’s decision” in reality means the decision of the Union Government).
- In the meantime, if the Lt. Governor thinks that the matter is urgent, he can take immediate action on his own – (bringing the matter back to square one).
How is it back to square one?
If a Lt. Governor, for example, wants to frustrate the efforts of the government, he can declare that there is a difference of opinion on any issue decided by the elected government and refer it to the President which in reality means the Union Home Ministry, and the Lt. Governor being its representative, it is easier for him to secure a decision in his favour.
- The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point.
- As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government.
- When the government decided to appoint them, the Lt. Governor referred it under proviso to Article 239AA (4) to the President stating that there is a difference of opinion between him and the government over this matter.
- In the meantime, the Lt. Governor appointed all the prosecutors whose names were submitted by the Delhi Police and thus the State government’s list was rejected.
Can routine administrative matters be referred to the president?
A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that the governor cannot refer routine administrative matters on account of “difference in views” as the Supreme Court says:
- “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.”
- “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor.”
- “Keeping in mind the standards of Constitutional trust and morality, the principles of collaborative federalism and the concept of Constitutional balance.”
- “The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.”
Matters of jurisdiction
- There is another point which emerges from the judgment and attention needs to be paid to it – the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
- Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.
- The Supreme Court says, “Article 239AA (3)(a) reserves the Parliament’s legislative power on all matters in the State List and Concurrent List but clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has powers to legislate.”
- The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4). But this proviso cannot totally override the executive decisions of the State government under clause (4).
- The judgment of the Supreme Court resolves this apparent contradiction by enjoining the Lt. Governor to keep in mind while making a reference to the President the constitutional morality, principles of collaborative federalism, concept of constitutional governance, objectivity, etc.
The last word
- Supreme Court gives wise advice to the Lt. Governor: “We may reiterate that the Constitutional scheme adopted for the NCT of Delhi conceives of the Council of Ministers as the representatives of the people on the one hand and the Lt. Governor as the nominee of the President on the other who are required to function in harmony within the Constitutional parameters.”
- “In the said scheme of things, the Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.”
-Source: The Hindu