Issue

Context-

Recently, the split verdict by the Supreme Court Bench of Justices A K Sikri and Ashok Bhushan is a setback to the Delhi government.

About -

Since AAP came into power in Delhi, the Delhi government had taken a range of issues, and has repeatedly invoked the "rights" of the elected government of the state to act in the interests of the people of Delhi.

The political party (AAP) demanded to know- how the state government was expected to perform its duties when it did not even have the powers to choose its officials for the jobs.

Background-

The major issues on Delhi government went to the Supreme Court:

• The power to appoint and transfer the officers of State Public Services
• The power over the Anti-Corruption Bureau (ACB)
• Right to implement the Electricity Reforms Act in Delhi.

Analysis

Decisions taken by the apex court:

• On the challenge to the Lieutenant Governor’s directive to the ACB not to take cognizance of allegations against officers of the central government, the Bench has upheld the powers of the Centre.
• On the challenge to a notification issued by the Delhi government’s Vigilance Directorate under the Commissions of Inquiry Act, 1952 without first seeking the views/concurrence of the L-G, too, the Bench has upheld the point of view of the Centre.

The central government is the “appropriate authority” under the Commissions of Inquiry Act as Delhi is not a “full state”.

All issues pertaining to the Electricity Reforms Act, the revision of minimum rates of agricultural land, and the power to appoint a special public prosecutor are, however, with the Delhi government.

Areas that needs clarity:

• Justice Sikri has ruled that power of transfers and postings of officers from the rank of Joint Secretary upward lies with the L-G; files regarding the rest of the officers are to be routed through the Delhi government.
• Justice Bhushan, has, however, ruled that “Services” as a whole are outside the purview of the Delhi government.

Hence, the two Justices have differed on the aspect of “services”, and that matter will now be referred to a larger Bench of the court.

Past judgments on similar grounds:

• In July 2018, a constitutional bench of the Supreme Court delivered a major verdict on the status of the National Capital Territory of Delhi.
• The legal puzzle was posed by Article 239AA of the Constitution, which entered the Constitution in 1991.
• The provision gave Delhi an elected legislative assembly and the legislative authority that other states enjoy, with three exceptions (public order, police and land).
• What it missed was:the new constitutional arrangement didn’t fully reveal the role of the L-G, who was hitherto the person in-charge of administering Delhi.
• In 2018, Supreme Court verdict was a firm endorsement of the position taken by the AAP.
• Given India’s parliamentary setup, the court rightly held that the L-G was bound to act on the aid and advice of the Council of Ministers.
• This was the natural consequence of having a democratically elected government. Power and accountability must lie with those who are elected.
• Although this resolved some matters, the 2018 verdict did not address specific conflicts between the Delhi government and the L-G.
• These were to be resolved subsequently by a smaller bench, which was to apply the overarching principle laid down by the constitutional bench.

This was the mandate that led to the Supreme Court verdict this week.

Govt. of Delhi vs. Lt. Governor, some important pointers (as mentioned by the Supreme Court’s Constitutional bench in July 2018):

1. The Constitution Bench of the Supreme Court held that the Lieutenant-General of the Delhi had to act as per the aid and advice of the Council of Ministers of Delhi Government except in matters of land, police and public order.
2. It held that the LG cannot interfere in each and every decision of the Delhi Government. Although decisions of the Government have to be communicated to the LG, there is no need to obtain the concurrence of LG in all matters.
3. The Court also held that Delhi was not a 'State', and occupied a special status under the Constitution.
4. Constitution has to be interpreted in such a manner to enhance its democratic spirit.
5. The paradigm of representative participation by engagement of citizenry should not be annihilated by interpretation.
6. The interpretative dissection of Article 239AA(3) (a) reveals that the Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. 
7. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the   Concurrent   List   and   all,   but   three   excluded subjects, in the State List.
8. A conjoint reading of clauses (3)(a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co­extensive with the legislative power of the Delhi Legislative Assembly and,
9. 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.  
10. However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament.
11. 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.
12. 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.
13. 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.
14. 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.

Conclusion-

• The Supreme Court’s decision seems entangled in the reading of specific phrases within texts and rules, but it seems surprisingly distant from the fact that Delhi has a representative government.
• The anomalies in the legal materials are a product of the presence of Union Territories and the fact that they are not states.
• Indeed, the verdict seems burdened by the fact that Delhi is not a state, and that single fact seems to cast a shadow over the court’s entire effort at reasoning and resolution.
• One cannot but help ask why, under these legal circumstances, one should bother with having a representative assembly in Delhi.

Learning Aid

Practice Question:

In a democratic republic, collective is the supreme and the elected representatives reflects the will of the collective. Considering this statement, how far do you concur with the recently delivered apex court’s judgment on Delhi government’s legislative and executive mandate?