From UPSC perspective, the following things are important :
Prelims level : Article 239AA and Article 239AB
Mains level : Paper 2- Conflict between Lt. Governor and the Delhi Government
The article analyses the tussle between the Delhi Government and the Lt. Governor.
What the 2018 SC judgement was about
- The Supreme Court in Government of NCT of Delhi vs. Union of India (2018) decided on the conflicts between the government of NCT and the Union Government and its representative, the Lieutenant Governor.
- It reminds the Lt. Governor what his real functions are.
- It tells the State government that it should remember that Delhi is a special category Union Territory.
- It lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
- It did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government.
Settled issues and clarifications
- The Supreme Court affirming that the Lt. Governor is bound to act on the aid and advice of council of ministers 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.
- However, 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.
- If the Lt. Governor thinks that the matter is urgent he can take immediate action on his own.
How Article 239 AA(4) matters
- Lt. Governor can frustrate the efforts of the government, by declaring that there is a difference of opinion on any issue and refer it to the President.
- Refering matter to the President in reality means the Union Home Ministry.
- The Lt. Governor being its representative, it is easier for him to secure a decision in his favour.
- The State government will be totally helpless in such a situation.
- The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point.
- 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.
- This episode clearly points to the fault lines which still exist in the power equations in the capital’s administrative structure.
But, can Lt. Governor refer routine administrative matter to the President?
- A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that he cannot.
- The Supreme Court says “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.
- Court also says that “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule”.
- The President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.
Executive powers and legislative powers
- 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 executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
- 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).
Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”
In the Constitutional scheme adopted for the NCT of Delhi 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.