Responsibility without power 

Responsibility without power 

Context

That the government in Delhi is elected yet circumscribed points to a constitutional anomaly. Apex court should correct it

Article 239 AA

Author states that the problem of jurisdictional conflicts between Delhi’s elected government and the lieutenant governor (LG) is attributable to the conundrum called Article 239 AA of the Indian Constitution

• Special constitutional set up: Incorporated in the Constitution in 1992, it creates a “special” constitutional set up for Delhi. A popularly elected assembly, a council of ministers responsible to the assembly, a certain demarcation of responsibilities between the LG and the council of ministers, a method for resolving the difference of opinion between the council of ministers and the LG are the main features of this arrangement

Changed circumstances

Author states that the above set up works well only when there is same government in Delhi & Centre. With AAP forming government in Delhi, the difficulties began to emerge

HC’s judgement

The Delhi High Court judgment declared that the LG is the only decision-making authority in the National Capital Territory

Present situation

Presently, the Supreme Court is looking into the powers of the elected government and those of the LG.

• Issues: There are two main issues:

1. Whether the elected government is the final authority in respect of matters assigned to it by the Constitution?
2. Whether the LG has primacy when a difference of opinion arises between him and his council of ministers on matters of governance?

Key difference

Author mentions that the Article 239 AA, though claimed to be a special provision meant for Delhi, in fact, contains most of the provisions of the Government of Union Territory Act, 1963

• Demarcation of responsibilities: The difference is in the demarcation of responsibilities between the elected government and Delhi’s LG
  • As per Article 239 AA (3) (a), the Delhi assembly can legislate on all those matters listed in the State List and Concurrent List as are applicable to union territories, excluding public order, police and land. These three items are reserved for the LG
  • Under Article 239 AA (4), the council of ministers has the executive power to execute all matters in respect of which the assembly has the power to make laws

Article 239 AB (a)

Article 239 AB (a) which says “if the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239 AA,” the president can dismiss the council of ministers

• The council of ministers is responsible for Delhi’s administration and if it fails in its functions, it will be removed by the president. But the council of ministers cannot be removed for the breakdown of the constitutional machinery unless they are vested with the power to take final decisions on matters of administration

Article 239 AA (b)

Article 239 AA (b) says that the council of ministers shall be collectively responsible to the assembly. But if the council of ministers is not the final decision maker what will it be accountable for? The president intervenes in Delhi’s administration on a report from the LG saying that the administration cannot be carried on. If the LG administers himself, how can he report to the president that he has failed? It is also absurd to think that the council of ministers will be removed for the failure of the LG

Referral to the president

The other issue relates to the right of the LG to disagree with the council of ministers on any matter and refer it to the president

• A rival political party running the government at the Centre would be the surest guarantee that the LG will disagree with most of the decisions of the government of Delhi, bringing governance to a standstill
• Such a provision virtually nullifies the executive power vested in the council of ministers under clause 4. It cannot be the intention of the lawmakers to take away the powers vested in the elected government and establish the primacy of the LG as the purpose of the constitutional amendment was to provide a democratic government for Delhi and not to enhance the powers of the LG

Clause 4

Clause (4) deals with the exercise of power by the LG on the aid and advice of the council of ministers as well as the exercise of discretionary powers without such aid and advice. When these powers are exercised, there is a likelihood of conflicts between the council of ministers and the LG on the scope of the matters in the discretionary list and the other list. It is only reasonable to refer such matters to a higher authority like the president

• But in regard to other matters of governance, the council of ministers should be left free to exercise the executive power as contemplated in Clause (4) of Article 239 AA

Conclusion

Author concludes by stating that since the lawmakers retained the confusion in the text of Article 239 AA (4) it may be a fit case for the Supreme Court to read down the provision to mean that the LG would refer to the president only matters concerning conflict of opinion on items reserved for the LG and those assigned to the assembly