AAP vs L-G Row: Key Takeaways from the SC Judgment

Is the SC decision a win for Arvind Kejriwal’s AAP Government or can the Centre still interfere through the L-G?

Is the Supreme Court decision a win for Arvind Kejriwal’s AAP Government, or does PM Modi still hold the advantage in Delhi through L-G Anil Baijal?

(Photo: The Quint)

In a landmark decision, the Supreme Court of India on Wednesday, 4 July, held that the Lieutenant-Governor of Delhi is bound by the aid and advice of the Council of Ministers of the Delhi Government.

While this does not mean that Delhi has the status of a State, it clarifies the special status that Delhi has as National Capital Territory (as against a normal Union Territory), which means that the Delhi Government can implement policies and decisions within their jurisdiction even if the L-G does not concur with them.

Chief Justice of India Dipak Misra delivered the majority judgment in the case (on behalf of himself and Justices AK Sikri and AM Khanwilkar), while Justices DY Chandrachud and Ashok Bhushan delivered separate but concurring judgments.

The judgment should act as a boost for Arvind Kejriwal’s AAP government, which has been engaged in a prolonged tussle with first L-G Najeeb Jung, and now L-G Anil Baijal, and had been hamstrung by the Delhi High Court’s decision on these issues in 2016.

But what exactly have the judges said? And has it really settled the stand-off between the Delhi Government and the Centre?

(Video Editor: Mohd Irshad)

Relevant Background

Special Constitutional Provisions for Delhi

• In 1991, Article 239AA was added to the Constitution of India, dealing with special rules for the administration of Delhi as the National Capital Territory, not just another Union Territory.
• Article 239AA provides for the creation of the Delhi Legislative Assembly and Council of MInisters. The Delhi Government has the power to frame law and policy on the same matters as other States in India, except for public order, police and land.
• Under Article 239AA(4), the Council of Ministers of Delhi is to “aid and advise” the L-G of Delhi.
• There is a Proviso to this section, which says that if there is a difference of opinion between the L-G and the Delhi Government on “any matter”, the L-G can refer this to the President of India for a decision.
• The Government of the NCT of Delhi Act 1991 (GNTCD Act) was passed to give effect to this Article, and set out the mechanism for the operation of the NCT of Delhi.

The Tussle Between Delhi Govt and the L-G

• In 2015, disputes arose between the AAP Government in Delhi and the BJP Government at the Centre as to whether the L-G was bound by the ‘aid and advice’ of the Delhi Government, and whether his approval was needed for making and implementing policies. Central to these issues was the Proviso to Article 239AA(4), and when the L-G could exercise his powers under it and therefore veto decisions of the Council of Ministers.
• In 2016, the Delhi High Court held that despite the special laws for Delhi, the L-G had the same discretion as the L-G of regular Union Territories, which meant he was not bound by the aid and advice of the Council of Ministers of Delhi. As a result, they held that the concurrence of the L-G was mandatory for all administrative actions of the Delhi Government – failure to obtain this would make those actions illegal.
• The Delhi Government appealed against this decision in the Supreme Court.

CJI Dipak Misra: L-G Has to Work Harmoniously with Delhi Govt

Key Points from CJI Misra’s Judgment

1. Constitutional provisions should be interpreted in such a way as to preserve the democratic nature of the Constitution.
2. Under Article 239AA(4), the L-G is bound by the aid and advice of the Council of Ministers of Delhi, unless he decides to exercise his power under the Proviso to refer differences of opinion to the President.
3. Just because he has this power, however, doesn’t mean he can use it all the time – “any matter” cannot be every matter. It can only be exercised in exceptional circumstances.
4. Such exceptional circumstances are not defined, but some of the factors to keep in mind are the standards of constitutional trust and morality, as well as respect for the federal structure of government. The L-G also has to keep in mind that the people of Delhi elected the Delhi Government to represent them, and so should not disagree with them for the sake of disagreement.
5. The L-G has to be kept informed of all decisions of the Council of Ministers, but this does not mean that his approval is required.
6. The L-G and the Delhi Government should perform their duties in accordance with constitutional ideals and must avoid absolutism and anarchy. They need to work together harmoniously.

Justice Chandrachud: Exercise of L-G’s Powers Must Not Destroy Democratic Values

Key Points from Justice Chandrachud’s Judgment

1. The Proviso to Article 239AA(4) must be interpreted in a way which facilitates and does not obstruct the governance of Delhi, and which recognises that under the Constitution, Delhi is meant to have a cabinet form of government.
2. This means that the term “any matter” cannot be construed as every matter. Neither the Constitution nor the GNCTD Act 1991 contemplate that every decision of the Delhi Government’s executive must receive prior concurrence of the L-G before it can be implemented.
3. The Supreme Court cannot lay down an exhaustive list of differences which may be referred to the President by the L-G under the Proviso, but these cannot be contrived differences. Suitable examples include substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of India.
4. The L-G should only exercise his power under the Proviso after attempts to resolve differences by mutual discussion.
5. The L-G needs to keep in mind that he does not have any independent authority, but that decision-making authority in a democracy lies with the executive – whether the Delhi Government or the President.

Justice Bhushan: L-G Can Only Exercise Power of Reference on Valid Reasons

Key Points from Justice Bhushan’s Judgment

1. There is no need for the L-G to concur with the decisions of the Delhi Government for them to be implemented – such decisions only need to be communicated to the L-G. However, a reasonable time gap needs to be given for the L-G to scrutinise the decision and decide whether or not to refer the matter to the President.
2. The L-G can only exercise his power under the Proviso on valid reasons after due consideration, when it becomes necessary to safeguard the interests of Delhi.

Is This Really a Win for the AAP?

When the judgment was announced, it was quickly viewed as a major win for Arvind Kejriwal’s AAP Government. Central to this perception was a widespread belief that the Supreme Court had held that the L-G could only refer a decision of the Council of Ministers to the President if it related to public order, police or land. These are the matters which are excluded from the Delhi Legislative Assembly’s scope of authority under Article 239AA (and so technically lie outside the scope of the Council of Minister’s decision-making authority as well).

However, while this was one of the arguments raised by the Delhi Government, in truth this had been expressly rejected by the judges. All three judgments note that the L-G’s power under the Proviso cannot be limited to decisions relating to these three issues.

Despite this, the judgment is still a win for the Delhi Government. Even though the L-G can refer decisions on any matter to the President, it has been clarified by all the judges that this can only be used in exceptional circumstances, and with adherence to high constitutional standards. They also emphasised that the Delhi Government is elected to represent the will of the people and that the exercise of the L-G’s power should not be used to subvert and obstruct democracy.

The clarification by the Supreme Court that the L-G is bound by the aid and advice of the Council of Ministers is also crucial, and represents a big change from what had been held by the Delhi High Court in 2016.

This allows the Delhi Government to frame policies without having to worry about getting prior approval from the L-G, which will be a significant shot in the arm for them. After all, lack of approval from the L-G had been used to stall a number of initiatives like home-delivery of services, and also to cancel the appointment of specialist advisors like Atishi Marlena.

Will the Tussle Between Kejriwal and the L-G Continue?

This does not mean, however, that this is the end of the tussle between the Kejriwal-led government and L-G Anil Baijal. Despite clarifying some important points, there are still some things which are unclear after the judgment, and are likely to require further clarification in fresh cases between Delhi and the Centre:

What constitutes an “exceptional situation” in which the L-G can refer a difference of opinion to the President?

The majority opinion penned by the CJI fails to offer any concrete guidance on this point, instead emphasising the constitutional ideals the L-G has to keep in mind if thinking of doing so. Justice Chandrachud does offer some more clarity, saying that the Proviso should only be invoked in relation to national concerns - where a decision of the Delhi Government could impact the functioning of the Union Government.

However, there will no doubt be differences of opinion between the Delhi Government and the L-G (who is after all a proxy for the Modi Government which is a political opponent of the AAP)

Does the L-G need to provide the Delhi Government with reasons in writing, and does this need to be done within a specific timeframe?

The judgments are silent on both these points, which could give rise to procedural confusion. Since the L-G is only supposed to refer decisions where there is a substantial difference of opinion, this seems to imply having cogent reasons, but the lack of time limits is more tricky.

The Centre has proven adept at exploiting these kinds of loopholes – for example, how they delay judicial appointments by just not responding to recommendations of the Collegium. Justice Bhushan mentions that only a reasonable time gap needs to be given, but does not elaborate on this, and it is in any case not binding since the other two do not mention this.

Will the Delhi Government now have control of civil service officers?

The issue of control over civil servants has been a major issue in Delhi and led to the dharna by Kejriwal at the L-G’s house in recent weeks. It is arguable that the Delhi Government can now stake a claim for control over its civil servants, since the judgments of the court emphasise that the only issues which are outside the purview of the Delhi Government are public order, police and land.

While services in other Union Territories are controlled by the Centre, the judges’ seeming recognition of Delhi’s special status offers them a new opportunity. However, again, this is an issue which is likely to need clarification in the courts.