{"id":34130,"date":"2018-10-30T15:57:53","date_gmt":"2018-10-30T10:27:53","guid":{"rendered":"https:\/\/blog.forumias.com\/?p=34130"},"modified":"2018-10-30T15:57:53","modified_gmt":"2018-10-30T10:27:53","slug":"lg-cannot-differ-with-government-on-tivial-issue","status":"publish","type":"post","link":"https:\/\/forumias.com\/blog\/lg-cannot-differ-with-government-on-tivial-issue\/","title":{"rendered":"LG cannot differ with government on tivial issue"},"content":{"rendered":"<p><a href=\"http:\/\/www.thehindu.com\/news\/cities\/Delhi\/difference-of-opinion-between-delhi-govt-lg-should-not-be-trivial-or-contrived-cji\/article19997854.ece\"><span style=\"font-weight: 400;\">LG cannot differ with government on tivial issue<\/span><\/a><\/p>\n<p><b>Context<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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. <\/span><\/li>\n<\/ul>\n<p><b>What were the other observations?<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Acknowledging the LG \u2018S authority to differ, his disagreement with the Delhi government should not be \u201ctrivial or contrived, but substantive,\u201d the court observed. <\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Aid and advice of the Delhi government should be accepted and respected unless there is an abuse of authority.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\"> The intervention of the LG does not mean he will have confrontation. It should be fact and issue oriented on objective parameters.<\/span><\/li>\n<\/ul>\n<p><b>Role of LG<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">The LG should conduct his constitutional duties as intended by Parliament in the 69th Constitutional Amendment.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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&#8217;s trust. The LG cannot replace the administration.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\"> LG can intervene and disagree if policies of the Delhi government amount to manifest transgression.<\/span><\/li>\n<\/ul>\n<p><b>What were the arguments?<\/b><\/p>\n<ul>\n<li><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li><span style=\"font-weight: 400;\">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 \u201caid and advice\u201d of the elected government.<\/span><\/li>\n<li><span style=\"font-weight: 400;\">The Delhi High Court had originally said that LG has special powers greater than the President, greater than other Governors of States.<\/span><\/li>\n<\/ul>\n<p><b>What are constitutional provisions?<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<\/ul>\n<p><b>What is the current controversy?<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">As the decision is pending before the President, the LG, if the matter is urgent, can use his discretion to take immediate action.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">The Constitution Bench, led by Chief Justice Dipak Misra, prima facie said that the Delhi government\u2019s ability to \u201caid and advice\u201d the LG is limited to subjects other than public order, police and land in the National Capital.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">It said that the proviso to Article 239AA (4), on plain reading, seems to give primacy to the LG.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">The LG is entitled to take a different view and is not bound by the aid and advice of the Delhi Cabinet.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">The allegation is that the LG has misused the discretion in this proviso to block governance.<\/span><\/li>\n<\/ul>\n<p><b>Is LG a supreme law?<\/b><\/p>\n<p><span style=\"font-weight: 400;\">There are total six grounds that determine LG as a suprema lex (supreme law).<\/span><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Firstly, that Delhi is still a Union Territory.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Secondly, Parliament makes the law for Delhi under Article 246 (4) of the Constitution.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Thirdly, Article 239AA has brought in no change to Delhi\u2019s status as a Union Territory simpliciter.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Fourthly, the proviso gives him the power of defiance.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Fifthly, LG has to concur to every decision made by the Delhi government.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Sixthly, LG can take independent decisions.<\/span><\/li>\n<\/ul>\n<p><b>What are the allegations?<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Mr. Subramanium argued that the \u201cextraordinary discretion\u201d of the LG is confined to special circumstances and not in everything.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Mr. Subramanium said the Delhi High Court was in error when it bought the Centre\u2019s 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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Mr. Subramanium evoked Article 73 of the Constitution to note that Article 246 (4) was subject to the provisions of Article 239AA.<\/span><\/li>\n<\/ul>\n<p><b>Functions of Lieutenant Governor<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<\/ul>\n<p><b>Role of Lt. Governor in Delhi<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">In \u00a0the \u00a0case of difference \u00a0of \u00a0opinion \u00a0between \u00a0the Lieutenant \u00a0Governor \u00a0and his Ministers on any matter, the Lt. Governor \u00a0can refer \u00a0it \u00a0to \u00a0the President \u00a0for decision \u00a0and \u00a0act according \u00a0to decision \u00a0given on that by the President.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<\/ul>\n<p><b>Discretionary Powers of Lt. Governor<\/b><\/p>\n<ul>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">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\u2019s Rule in the state.<\/span><\/li>\n<li style=\"font-weight: 400;\"><span style=\"font-weight: 400;\">Under President\u2019s 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\u2019s rule is also subject to discretion of the Lt. Governor.<\/span><\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"<p>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 \u2018S authority to differ, his disagreement with the Delhi government should not be&hellip; <a class=\"more-link\" href=\"https:\/\/forumias.com\/blog\/lg-cannot-differ-with-government-on-tivial-issue\/\">Continue reading <span class=\"screen-reader-text\">LG cannot differ with government on tivial issue<\/span><\/a><\/p>\n","protected":false},"author":61,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[555],"tags":[],"class_list":["post-34130","post","type-post","status-publish","format-standard","hentry","category-test-1","entry"],"jetpack_featured_media_url":"","views":{"total":0,"cached_at":"","cached_date":1704169198},"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/34130","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/users\/61"}],"replies":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/comments?post=34130"}],"version-history":[{"count":0,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/34130\/revisions"}],"wp:attachment":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media?parent=34130"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/categories?post=34130"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/tags?post=34130"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}