LG Has Primacy But Can’t Sit On Files: SC
The Supreme Court on November 2, 2017 commenced a crucial hearing to determine whether the elected government or the Lieutenant Governor enjoys supremacy in administration of the Union Territory of Delhi, observing that the constitutional scheme was prima facie tilted in favour of the LG. The Supreme Court said that the Constitution “prima facie” gives primacy to the Lieutenant Governor in the affairs of Delhi, but observed that the LG cannot sit on files sent for approval by an elected government. No doubt, if an LG just sits on the file, he is doing nothing but making an open mockery of the elected mandate which the Chief Minister secured in the elections and this can never be good for the health of a vibrant democratic country like India!
A five-Judge Constitution Bench is hearing a clutch of petitions by the Delhi government against a Delhi High Court decision that declared the LG, who reports to the Centre, the administrative head of the national capital. The Apex Court too seemed to agree with this view and said that “land, police and public order” are not under the purview of the Delhi government. But what cannot be allowed to go unnoticed is that the Bench of Supreme Court headed by Chief Justice of India Dipak Misra said, “The LG cannot stultify an executive decision by sitting over a file. He must exercise his power in a reasonable time.”
The Bench also made it clear that in case of differences with the ministers, he should refer the matter to the President and must spell out the reasons. He cannot just straightaway refuse to give reasons in any matter. It must be revealed here that these observations have given a glimmer of hope to the Arvind Kejriwal Government which had approached the Apex Court to determine the powers of the LG under Article 239AA(4) according to which in case of “difference of opinion” between the LG and the elected Government, the former has power to refer the matter to President, or in the event of urgency pass necessary orders for immediate action.
It is important to mention some flashpoints which showed how unenviable the tussle has been going on between the LG and the Delhi CM since quite a long time. Here are some government orders that were either struck down or delayed by LG. They are as follows: –
Mohalla clinics: AAP MLAs staged sit-in at LG’s office on August 30. AAP MLAs alleged that LG was sitting on the file for months. Soon after on September 4, LG gave clearance.
Teachers recruitment: Delhi government alleged files were not shown to Education Minister Manish Sisodia. LG Blamed his department for not following procedure. Slum rehabilitation: Cleared by Cabinet on June 20. File with LG after being sent on July 10.
App-based premium buses: LG struck down proposal. Alleged that it was intended to benefit a certain company.
Mohalla sabhas: Cabinet cleared project in June. Files await LG’s nod. Rs 350 crore funds unutilized.
Regularisation of guest teachers. Manish Sisodia who is Deputy Chief Minister and Education Minister has written to the LG Anil Baijal reminding him about the pending Bill on regularization of guest teachers that was passed by the Delhi State Assembly in early October. Sisodia alleged that he had sought an appointment with LG along with guest teachers but he refused to meet all and only agreed to meet Sisodia alone.
Increase of stamp duty and circle rate of agricultural land.
Setting up of inquiry commission to probe CNG fitness scam, irregularities in Delhi District Cricket Association (DDCA).
Be it noted, the Bench of Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan said they will examine the scope of Article 239AA, which clearly stipulates the L-G’s “primacy” over decisions taken with regard to Delhi. The Apex Court urged the Delhi Government to propose a middle path that can allow both the LG and the elected Government to coexist “harmoniously”. Very rightly so!
Needless to say, Justice DY Chandrachud orally observed that, “The Lieutenant Governor (LG) of Delhi cannot stultify proposals or schemes forwarded by the Council of Ministers to him by simply sitting on it.” He also added that, “He [the LG] is bound to pass the difference of opinion [between the LG and the Council of Ministers] to the President for early resolution.” Justice Chandrachud’s observations came on the first day of a five-Judge Constitution Bench hearing of a batch of nine appeals filed by the Arvind Kejriwal-led AAP government against an August 4, 2016 verdict of the Delhi High Court.
To put things in perspective, while appearing for the Aam Aadmi Party (AAP) Government in Delhi, senior advocate Gopal Subramanium told the Bench that such was the state of affairs in the Capital that appointment to fill up nearly one lakh vacant posts at all levels, from peons to higher posts, is stuck as the files have remained pending with the LG office. Subramanium also minced no words to point out that the LG calls meeting with Secretaries bypassing Ministers who are the departmental heads. This certainly is not a healthy precedent.
Truth be told, Gopal Subramanium also made it a point to ask categorically that, “Why is there an elected Government in the first place? This matter is not about supremacy, but to make a democratic experiment provided by Parliament a success. It can’t be that the LG has to disagree with you on anything and everything and block governance.” Kejriwal also was at pains to point out that, “My government is so powerless that I can’t even get my peon appointed.” He has also complained to the Supreme Court that the Centre through the Lieutenant Governor who acted as a “super governor”, had completely paralysed the elected AAP government by stalling its every welfare scheme.
As things stand, Gopal Subramanium said that, “The LG has been exercising powers in such a manner to completely block Delhi government and negate the intent and object of Article 239AA which gave a democratically elected government to Delhi.” He also rightly pointed out that, “The purpose of Article 239AA was to provide some kind of voice to the people. We are not contesting parliamentary supremacy. But there must be an elbow room for the Legislative Assembly…Everything we do does not require the concurrence of the LG.”
He also submitted that, “The Delhi High Court actually said this LG has special powers greater than the President, greater than the Governors of States.” It cannot be lost on us that since the formation of the AAP government in 2015 in Delhi, it has been locked in a fierce turf war with the LG over whose writ should run in Delhi. This is what is most unfortunate!
To be sure, Article 239AA was inserted in the Constitution by the 69th Constitutional Amendment Act to give Delhi an Assembly and an elected government with a Council of Ministers headed by a Chief Minister but without the power to legislate or control land, law and order and police. This is what has become the bone of contention between the LG and the Chief Minister of Delhi. The Kejriwal government approached the Supreme Court to demarcate the powers between the Centre and the Delhi government for smooth exercise of executive functions by the elected government.
When the Bench said a proviso in Article 239AA prima facie appeared to suggest that the LG had primacy in governance of Delhi, Gopal Subramanium said that, “Is it the intent of the constitutional provision to make civil servants openly defy the elected government? Is it the mandate of the constitutional provision that the LG must stall every scheme of the Delhi government – extending the functioning of mohalla clinics for one year, regularising posts of teachers in municipal schools, and filling up of nearly one lakh sanctioned posts at various levels through a transparent process? Now, the ministers as departmental heads have to fall at the feet of the bureaucrats to implement public welfare schemes.”
Not stopping here, it was further submitted that, “Bureaucrats pay no heed to others from ministers and openly say that they will await nod from the LG’s office. Is this what is contemplated in Article 239AA, which makes the chief minister accountable to the people? The LG keeps sitting on files which are required to be cleared to allow day to day functioning of the Delhi government. Delhi government cannot appoint lawyers of its own choice. If everything is going to be stultified by the LG, why have an elected government at all in Delhi?” He also however admitted in the same breath that, “In egregious situations where there is palpable abuse of authority, the LG can indeed intervene as a delegate of the President.” He also described the LG as a watchdog.
It would be pertinent to mention here that the Chief Justice of India (CJI) Dipak Misra orally observed that, “The Lieutenant Governor (LG) cannot differ with each and any administrative decision of the Delhi government. Though having every authority to differ, his disagreement with the Delhi government should not be trivial or contrived, but substantive. Aid and advice (of the Delhi government) should be accepted and respected unless there is an abuse of authority.”
It would be equally pertinent to mention here that the CJI Dipak Misra also went on to add that, “The intervention [of the LG] does not mean he will have confrontation. It should be fact and issue-oriented on objective parameters. The LG should conduct his constitutional duties, keeping in mind factors like he is an august head, keeping in mind the special status of Delhi as the National Capital, what was intended by Parliament in the 69th Constitutional Amendment, not act in a way to defeat the intent of the constitutional provision of Article 239AA of harmonious governance and, most importantly, citizenry’s trust.” Justice DY Chandrachud observed that, “He [LG] cannot supplant the administration”.
While making the picture further clear, Justice Ashok Bhushan remarked that it was not constitutionally contemplated that one man’s concurrence would be required for each and everything that an entire ministry does. CJI Dipak Misra said the LG need not concur with everything. Referring to the Government of National Capital Territory of Delhi Act of 1991, the Chief Justice said the Delhi government is bound to intimate the LG on taking a policy decision. He also made it clear to Delhi CM Arvind Kejriwal that, “You are bound to intimate the LG, but you cannot say that the LG has to concur.”
All said and done, both Delhi Chief Minister Arvind Kejriwal and Delhi Lieutenant Governor Anil Baijal must adhere to what the top court has said and to what CJI Dipak Misra has advised. No doubt, Lieutenant Governor Anil Baijal deserves primacy in all the affairs of Delhi but the LG cannot just sit on files and decisions cannot just keep hanging in fire indefinitely. The interests of the people of Delhi must be always supreme under all circumstances and both the LG and the Delhi CM must always bear it in mind always while working in their offices!
It is high time and now they must both understand and fully appreciate the basic undeniable truth that the more they work harmoniously in tandem with each other, the more the wheels of governance will run smoother and better and the more the people of Delhi will stand to gain in the longer run! There can be no denying or disputing this! This is exactly what the Supreme Court too wants as is explicit by what it has said so far!
By Sanjeev Sirohi