Delhi LG has no independent decision making power, says Supreme Court

In a landmark judgment Supreme Court of India in the matter of GOVERNMENT OF NCT OF DELHI VS UNION OF INDIA & ANOTHER ( Civil appeal no. 2357 of 2017) settled the law regarding powers of the LG of Delhi.

The principal question before the Supreme Court was whether the inhabitants or voters of NCT of Delhi remain where they were prior to the special status conferred on the Union Territory or the amended constitutional provision that has transformed Delhi instills “ Prana” to the cells. 

Supreme Court held as under:

1. In the light of the ruling of the nine judges bench in New Delhi municipal corporation, it is clear NCT of Delhi can be accorded the status of a “State” under our present constitutional scheme. The status of NCT of Delhi is sui generis, as class apart, and the status of the Lieutenant Governor ( LG) of Delhi is not that of a Governor of a State, rather he remains an administrator, in a limited sense, working with the designation of Lieutenant Governor.

2.  With the insertion of Article 239 AA by virtue of the Sixty-ninth Amendment, the Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative power over matters falling within the State List and the Concurrent list, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advise of the Council of Ministers except when he decides to refer the matter to the President for final decision.   

3. The interpretive dissection of Article 239 AA(3) (a) reveals that Parliament has power to make laws for the National Capital of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects in the State List.  

4. Under Article 239AA the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative Assembly and , accordingly, the executive power of the council of ministers of Delhi spans over all subjects in the concurrent List and all, but three excluded subjects, in the State list. However, if the Parliament makes law in respect of certain subjects falling in the State List or concurrent List, the executive action of the State must conform to the law made by the Parliament.

5. The Union of India has executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This  however, is subject to the proviso to Article 239AA(4) of the Constitution.

6. The meaning of  “aid and advice” employed in Article 239 AA has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA .The Lieutenant Governor has not been entrusted with any independent decision- making power. He has to either act on the “aid and advise” of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.

7. The power of the Lieutenant Governor under clause (4) of Article 239 AA is exceptional and not the general rule. 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.

8. The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale.

9. The Lieutenant Governor and the Council of ministers must attempt to settle any point of difference by way of discussion and dialogue.     

10. The Transaction of Business Rules, 1993 suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them every step of the way.

11. The Scheme under Article 239 AA and 239 AB read with the provisions of the GNCTD Act, 1991 and the corresponding Transaction of Business Rules, 1993 , indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The decision of council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof.

Apex Court also observed that there is no room for absolutism under the constitutional scheme and there is no space for anarchy. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realization of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals.   The lieutenant Governor and the Council of ministers headed by the Chief Minister are to constantly remain alive to this idealism.

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