LG cannot differ with government on tivial issue

LG cannot differ with government on tivial issue

Context

• Chief Justice of India Dipak Misra orally observed that the Lieutenant Governor (LG) cannot differ with each and any administrative decision of the Delhi government.

What were the other observations?

• Acknowledging the LG ‘S authority to differ, his disagreement with the Delhi government should not be “trivial or contrived, but substantive,” the court observed.
• Aid and advice of the Delhi government should be accepted and respected unless there is an abuse of authority.
• The intervention of the LG does not mean he will have confrontation. It should be fact and issue oriented on objective parameters.

Role of LG

• The LG should conduct his constitutional duties as intended by Parliament in the 69th Constitutional Amendment.
• The LG should not act in a way to defeat the objective of the Constitutional provision of Article 239AA of harmonious governance and, most importantly, citizenry’s trust. The LG cannot replace the administration.
• LG can intervene and disagree if policies of the Delhi government amount to manifest transgression.

What were the arguments?

• As per the observation, LG is bound to pass the difference of opinions between the LG and the Delhi Council of Ministers to the President for early resolution.
• The Kejriwal government wants the Supreme Court to lay down the law on whether the LG can unilaterally administer the National Capital without being bound by the “aid and advice” of the elected government.
• The Delhi High Court had originally said that LG has special powers greater than the President, greater than other Governors of States.

What are constitutional provisions?

• The 69th Amendment of the Constitution in 1992 gave the National Capital of Delhi special status with its own democratically elected government and legislative assembly.
• Sub-section (4) of Article 239AA mandates that a Council of Ministers shall aid and advice the LG in his functions regarding laws made by the Legislative Assembly.

What is the current controversy?

• The focus of the current controversy is a proviso to Article 239AA (4), which mandates that in case of a difference of opinion between the LG and the Council of Ministers, the former has to refer the issue to the President.
• As the decision is pending before the President, the LG, if the matter is urgent, can use his discretion to take immediate action.
• The Constitution Bench, led by Chief Justice Dipak Misra, prima facie said that the Delhi government’s ability to “aid and advice” the LG is limited to subjects other than public order, police and land in the National Capital.
• It said that the proviso to Article 239AA (4), on plain reading, seems to give primacy to the LG.
• The LG is entitled to take a different view and is not bound by the aid and advice of the Delhi Cabinet.
• The allegation is that the LG has misused the discretion in this proviso to block governance.

Is LG a supreme law?

There are total six grounds that determine LG as a suprema lex (supreme law).

• Firstly, that Delhi is still a Union Territory.
• Secondly, Parliament makes the law for Delhi under Article 246 (4) of the Constitution.
• Thirdly, Article 239AA has brought in no change to Delhi’s status as a Union Territory simpliciter.
• Fourthly, the proviso gives him the power of defiance.
• Fifthly, LG has to concur to every decision made by the Delhi government.
• Sixthly, LG can take independent decisions.

What are the allegations?

• In his day-long submissions before the Bench, Mr. Subramanium said situation of governance in Delhi has come to such a turn that department Ministers are unable to get an opinion from their secretaries and civil servants on issues of governance.
• Mr. Subramanium argued that the “extraordinary discretion” of the LG is confined to special circumstances and not in everything.
• Mr. Subramanium said the Delhi High Court was in error when it bought the Centre’s argument that Delhi was like any other Union Territory governed by parliamentary laws under Article 246 (4) and there was no need to give the Delhi government any elbow room.
• Mr. Subramanium evoked Article 73 of the Constitution to note that Article 246 (4) was subject to the provisions of Article 239AA.

Functions of Lieutenant Governor

• Like Governor, Lt. Governor acts as the titular head of the UT whereas the real power is exercised by the chief minister (CM) and his council of ministers.
• In the Articles 239 and 239AA of the Constitution of India, the functions, powers and duties of the Lt. Governor are defined clearly. He is a representative of the President and acts on the aid and recommendation of the council of ministers.
• The provisions of Article 239B apply in relation to the National Capital Territory of Delhi, as they apply in relation to the UTs of Andaman and Nicobar Islands and Puducherry.

Role of Lt. Governor in Delhi

• The Sec. 41 of the GNCT (Government of National Capital Territory) of Delhi Act, 1991 clarifies that the Lieutenant Governor shall act in his discretion during a matter that falls outside the range of the powers conferred on the Legislative Assembly.
• If the Lt. Governor is under any law required to act in his discretion, his decision on that case will be final. In respect of matters regarding Police, Public Order and Land, the Lt. Governor exercises his authority to the extent delegated to him by the President. He exercises his authority with the help of Policei Commissioner of Delhi and Vice Chairperson, Delhi Development Authority (DDA) who have their independent administrative setups.
• Lt. Governor is Ex-officio Chairman of DDA, however he exercises his executive functions through Appellate Authority under various Acts/Rules/Regulations as applicable in Delhi.
• In  the  case of difference  of  opinion  between  the Lieutenant  Governor  and his Ministers on any matter, the Lt. Governor  can refer  it  to  the President  for decision  and  act according  to decision  given on that by the President.
• The post of Lt. Governor was first established in September 1966 after the Delhi Administration Act, 1966 came into effect. At the commencement of the primary session after each election to the Assembly and at the commencement of the first session of every year, the Lt. Governor addresses the House.

Discretionary Powers of Lt. Governor

• The Lt. Governor uses his discretionary powers in certain situations. In the legislative assembly elections if no party secures a majority, the Lt. Governor has the authority to act on his own and ask the leader of the single largest party or the chosen leader of two or more parties to form the government.
• In such case, Lt. Governor appoints that leader as the Chief Minister. If due to improper administration, the state machinery breaks down, the Lt. Governor can send a report to the President, recommending imposition of President’s Rule in the state.
• Under President’s Rule, the Lt. Governor becomes full-fledged executive head of the government and has the power to appoint a group of advisors who act as council of ministers. The duration of President’s rule is also subject to discretion of the Lt. Governor.