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L-G cannot act without the aid and advice of the council of Ministers

  • Published
    12th Apr, 2023

The Supreme Court (SC) has orally observed the action of the Lieutenant Governor (L-G) to make a decision ‘without aid and advice’ of the Council of Ministers in nominating 10 members to the Municipal Corporation of Delhi.

About Supreme Court’s Observation:
  • The top court, which had earlier issued notice on the plea of the Delhi government, has granted 10 days to the office of the L-G to file the response to the petition seeking quashing of the nomination of the 10 members.
  • A Bench comprising Chief Justice D. Y. Chandrachud and Justices P. S. Narasimha and J. B. Pardiwala has made these observations on LG’s decision of nominating the members without any consultation with the members of a legislative assembly.

Who is a Lieutenant Governor (L-G)?

  • The full form of LG is Lieutenant Governor.
  • In India, LG is in charge of a Union Territory (U.T).
  • However, the rank of Lieutenant Governor is only available in the 3 U.T of India, i.e. the Andaman and Nicobar Islands, Delhi and Puducherry.

Role of LG:

  • L-G is a representative of the President and acts on the aid and recommendation of the Council of Ministers.
  • Section 41 of the GNCT (Government of national capital territory) of the Delhi Act, 1991 states that the L-G shall act at his discretion during a matter that falls outside the range of the powers conferred on the Legislative Assembly.
  • In respect of matters related to Police, Public Order and Land, L-G exercises his authority to the extent delegated to him by the President.

Discretionary Powers of L-G: If in the Legislative assembly elections, no single party seeks a majority, L-G is sovereign to act on his own and ask the leaders of the single largest party or the chosen leader of two or more parties to form the government.

  • Under the President’s rule, L-G behaves as the executive head of the government and has the power to appoint a group of advisors who act as the council of ministers.
  • Before a Minister enters his office, the Lt. Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the schedule.

Eligibility criteria to become Lieutenant Governor:

  • The candidate should be an Indian citizen
  • Candidate should be at least 35 years old
  • Shouldn’t be a part of parliament house or state legislature house
  • Should not keep other profitable offices.

Constitutional Backing:

  • Articles 239 and 239AA of the Constitution, as well as the Government of National Capital Territory of Delhi Act, 1991, clearly underline that the role of the Centre is more prominent in the UT of Delhi, where the L-G is the eyes and ears of the Centre.
  • Under the constitution, the Delhi Assembly has the power to legislate on all subjects except law & order and land.

Complexity in the administration of Delhi:

  • The very nature of the administrative set-up in Delhi seems to give rise to a dispute between the CM (and the Council of Ministers) and the LG.
  • Article 239AA clearly states that the Council of Ministers and the CM shall aid and advise the LG in his executive functions while the legislative assembly is to handle the law-making process.
  • It also says that in case of a difference between the LG and any minister (particularly with regard to the Chief Minister), the President’s decision shall be sought by the LG.
  • If this is unavailable and the matter is an urgent one, the LG may use his discretion to take a decision and initiate action in the matter as he deems fit.
  • Over the past few years, the power tussle between the Delhi government and the office of the Lieutenant-Governor has been based on the interpretation of this article.
  • The government claims that the LG is bound by the advice of the Council of Ministers, meaning that the governance of Delhi is the responsibility of the state government while the LG’s office claims that the ministers remain in an advisory capacity and the ultimate decision should be the LG’s.

Supreme Court’s View on the Power of L-G:

  • The Supreme Court’s decision on the power of Delhi L-G.
  • L-G has no “independent decision-making power” and has to act on the aid and advice of the elected government.
  • The Supreme Court said the L-G must work “harmoniously” with the ministers and not seek to “resist them every step of the way”.
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