The Supreme Court today handed a major victory to Delhi's AAP government in its bitter power tussle with the Centre by ruling that the Lieutenant Governor (LG) has no independent power to take decisions and is bound by the elected government's advice.
The landmark judgement by a five-judge constitution bench headed by Chief Justice Dipak Misra laid down broad parameters for the governance of the national capital, which has witnessed the power struggle between the Centre and Delhi government since the Aam Aadmi Party formed government in 2014.
There were two LGs -- incumbent Anil Baijal and his predecessor Najeeb Jung -- with whom Chief Minister Arvind Kejriwal was at loggerheads, accusing both of them of preventing the functioning of his government at the behest of the Centre.
The ruling vindicates Kejriwal, who has long accused the LG of preventing his government from functioning properly at the behest of the Centre. It also lays down for the first time clear guidelines for the LG's conduct, and delineates the powers of the two branches of the executive in Delhi, which does not have the status of a full state yet elects its own MLAs and government.
The apex court said that barring three issues of public order, police and land, the Delhi government has the power to legislate and govern on other issues.
"The LG has not been entrusted with any independent decision-making power. He has to either act on the 'aid and advice' of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him," CJI Misra, who penned the 237-page lead verdict for himself and on behalf of Justices A K Sikri and A M Khanwilkar, said.
However, the judgement made it clear that Delhi cannot be accorded the status of a state under the constitutional scheme.
"It is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme," it said.
"The status of NCT of Delhi is sui generis, a class apart, and the status of the Lieutenant Governor 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 LG," the verdict said.
Observing that the Constitution was "constructive", it also made it clear that "there is no room for absolutism. There is no space for anarchy."
The verdict answered contentious issues involving interpretation of Article 239 AA dealing with the powers and the status of Delhi, which would now be considered by a bench of 2 or 3 judges to adjudicate the matters on which there was a tug of war between the Delhi government and the Centre.
The bench, which expressed its opinion on the constitutional provisions referred to it by its smaller bench, said now the batch of appeals arising out of the August 4, 2016 verdict of Delhi High Court, in which it was held that LG was the administrative head, would come up before an "appropriate regular bench".
It held that though the LG was nota"titular head", he should not emerge as an "adversary having a hostile attitude" towards the government but act as a facilitator. The differences of opinion between them should have a "sound rationale" and there should be no exposition of the "phenomenon of an obstructionist".
It also said the LG 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. "The LG and the council of ministers must attempt to settle any point of difference by way of discussion and dialogue," it said.
The bench made it clear that though the decisions of the Council of Ministers must be communicated to the LG, it did not mean that his concurrence was required in every case.
Referring to the 1993 Transaction of Business of the Government of NCT of Delhi Rules, the court said this suggested that the LG must work "harmoniously" with the ministers and not seek to "resist them every step of the way".
Justice D Y Chandrachud, who wrote a 175-page separate concurring verdict, said "the LG must bear in mind that it is not he, but the council of ministers which takes substantive decisions and even when he invokes the proviso, the LG has to abide by the decision of the President."
He also held that the provisions of Article 239 AA(4) must be operated and applied in a manner which facilitates and does not "obstruct" governance in Delhi.
Justice Ashok Bhushan, who also wrote a 123-page concurring judgement, said as the Delhi Legislative Assembly represents the elected representatives, "their opinion and decisions have to be respected in all cases, except where LG decides to make a reference to the President".
The tussle between the LG and Kejriwal had reached a peak earlier this year when Chief Secretary Anshu Prakash made it clear that he is answerable only to the LG, which resulted in a confrontation at the Secretariat and Prakash was allegedly slapped by an AAP MLA. Subsequently, Delhi bureaucrats went on a virtual strike, refusing to attend meetings called by the ministers.
Kejriwal raised the stakes by staging a sit-in in the visitors' lounge at the LG's residence for several days alleging that the LG was repeatedly throwing "hurdles" in the way of the functioning of an elected government, before a compromise was hammered out.
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