AAP MLA Saurabh Bhardwaj, Delhi CM’s advisor Nagendra Sharma outside the Supreme Court . Express Photo by Amit Mehra
In a victory for the Aam Aadmi Party government in Delhi, a five-judge bench of the Supreme Court ruled that the Lieutenant Governor’s approval wasn’t required for every decision taken by the council of ministers.
The bench said that apart from subjects that weren’t in the state government’s ambit, the Lieutenant-Governor’s consent wasn’t required for every decision. It also said that the Lieutenant Governor could, in the event of disagreement with the council of ministers, refer a decision to the President, but would be bound by the President’s decision on the matter.
Three judges, led by Chief Justice Dipak Misra wrote a common judgment, while Justice YV Chandrachud and Justice Ashok Bhushan wrote independent judgments.
Excerpts from the judgment by CJI Dipak Misra, Justice AK Sikri and Justice AM Khanwilkar
-The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics.
-With the insertion of Article 239AA 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 powers 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 advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.
-The meaning of ‘aid and advise’ employed in Article 239AA(4) 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 advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.
-The words “any matter” employed in the proviso to clause (4) of Article 239AA 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 Lieutenant Governor keeping in mind the standards of constitutional trust and
morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. 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.
-The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness
-The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts.
-Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. 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.
Excerpts from Justice YV Chandrachud’s judgment
-While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union territory, thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi;
-Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Lieutenant Governor must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President;
-The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital Territory. Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union. Given the complexities of administration, and the unforeseen situations which may occur in future, it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances arranting recourse to the proviso. In deciding as to whether the proviso should be invoked the Lieutenant Governor shall abide by the principles which have been indicated in the body of this judgment.
Excerpts from Justice Ashok Bhushan’s judgment
-The “aid and advice” given by Council of Ministers as referred to in subclause (4) of Article 239AA is binding on the LG unless he decides to exercise his power given in proviso to subclause (2) of Article 239AA.
-The Legislative Assembly of NCTD being representing the views of 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 power given in proviso to subclause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the LG on valid reasons after due consideration, when it becomes necessary to safeguard the interest of the Union Territory.
-For the Executive decisions taken by the Council of Ministers/Ministers of GNCTD, proviso to subclause (4) gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between decisions of the Ministers and the LG, but the Constitutional Scheme does not suggest that the decisions by the Council of Ministers/Ministers require any concurrence of the LG.
-The scheme as delineated by 1991 Act and 1993 Rules clearly indicates that LG has to be kept informed of all proposals, agendas and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through so as to enable him to exercise the powers as conceded to him under proviso to subclause (4) as well as under 1991 Act and 1993 Rules. The purpose of communication is not to obtain concurrence of LG.
-From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.
Read the full text of the judgment here