For the last three years, the national capital – New Delhi – has stood witness to an unending slugfest between the Lieutenant Governor’s office and the Secretariat. The Arvind Kejriwal-led government has repeatedly accused the LG of working like a puppet of the Bharatiya Janata Party-led Central government. The Central government, to help matters along, kept curtailing the powers of the elected government in Delhi citing various constitutional provisions.

The breakdown in relations can be traced back to when the Central government snatched away the control of the Anti-Corruption Branch (ACB) from the Kejriwal government. Thereafter, one after the other, various responsibilities were handed over to the LG’s office.

The Delhi High Court’sAugust 4, 2016 judgment proved almost fatal for the AAP-led government when it declared the LG as the administrative head of the National Capital Territory of Delhi and was not required to act on the advice of the Cabinet.

What followed was utter chaos, administrative impasse, protests and dharnas.

On July 4, 2018, the Supreme Court’s five-judge constitutional bench pronounced its judgment – which to an extent has finally turned the tables in the AAP government’s favour. The judgment states that the LG is bound by the “aid and advice” of the elected government and cannot interfere in each and every decision of the government.

Right after the judgment was delivered, the Central government’s counsel, Assistant Solicitor General Maninder Singh claimed that it was a victory for the Centre. “The court has not accepted the contention that Delhi government be treated like any state government and the Lieutenant Governor should be taken as governor of any other state,” Singh told the media.

Advocate and BJP leader, Nalin Kohli told Newslaundry, “Like for some political leaders, poverty is state of mind, for them [AAP] victory is a state of mind. It is a victory of the constitutional democracy and provision that existed [Article 239 AA (4)]…”

Delhi Government’s counsel, Rahul Mehra, too claimed victory. Speaking to Newslaundry, Mehra said, “The aid and advice of the Council of Ministers will be binding on the honourable LG.” He also claimed that the services department will be now under the Kejriwal government and they can carry out the transfer and posting of the officers. Importantly, Kejriwal and his Cabinet didn’t even waste a day to issue orders related to transfers and postings.

While both sides are claiming victory, the question is, exactly who won? According to legal experts, the constitutional bench of the Chief Justice of India, Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan has reiterated the provisions under Article 239AA. The moral lectures given in the judgment indicated that it is in favour of the AAP government.

Importantly, neither former LG Najeeb Jung or incumbent Anil Baijal gave a nod to several AAP government’s proposals citing the fact that prior permissions for the proposals were not taken from the Raj Niwas. The ugliest showdown between the two sides probably took place during the recent Delhi Assembly sessions where IAS officers working with the Delhi government refused to respond to several questions posed to them – citing that those subjects were reserved with the LG office.

However, the 535-page verdict by the constitutional bench has ended the scope for such disputes or loggerheads. While CJI Misra read his and Justices Sikri and Khanwilkar’s judgment, Justice Chandrachud and Justice Bhushan gave their separate verdicts.

The judges, in the verdict, pronounced a series of moral lectures on democracy, institutions and stated how both the LG and the government should work together. These are seven salient points which clearly show that whatever the BJP’s claims, this judgment is indeed a major setback for the LG:

1. ‘LG no independent authority’

Clearing the confusion, if any, Justice Chandrachud in his verdict said that the LG is not an independent authority. In point number 20 of the conclusion, he said, “…there is no independent authority vested in Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi-judicial authority under any law or has been entrusted with powers by the President under Article 239 on matters which lie outside the competence of the Government of NCT)…”

2. ‘LG to work on aid and advice of the Council of Ministers’

The Delhi HC in its August 4, 2016 verdict has said that the AAP government’s contention that the LG is bound to act on the advice of the Council of Ministers “is without any substance and cannot be accepted”. Reversing this verdict, the five-judge bench unanimously pronounced that the LG has to act on the “aid and advice of the Council of the Ministers”.

CJI Misra, Justices Sikri and Khanwilkar in a united judgment in point number xvii [page 231] said: “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 232 taken by the President on a reference being made by him.”

It states that because the Cabinet owes a duty towards the legislature for every action taken, each Ministry and every Minister is responsible for every act of the Ministry, hence the LG must work on their “aid and advice”.  

3. ‘Can’t differ on every matter and refer it to the President’

The LG can disagree with the “aid and advice” of the Council of Ministers and can send such matters to the President. However, the judges unanimously also stated in their verdicts that not every matter can be sent to the President.

The three judges in point xviii of their common verdict said the words “any matter” employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean “every matter”. It clearly stated that the power of the LG under the proviso represents the exception and not the general rule. It also states, “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.”

4. ‘LG – a limited administrator’

CJI Misra, Justices Sikri and Khanwilkar in their common judgment have clearly laid out that [in point xii] the status of NCT of Delhi is sui generis (a class apart), and the status of the Lieutenant Governor of Delhi is that of “an Administrator, in a limited sense, working with the designation of Lieutenant Governor.”

5. Delhi government only need to inform the LG and not seek his permission

The Delhi HC order had made it mandatory for the elected government to seek the LG’s permission for every proposal and scheme. Reversing this order, the constitutional bench ordered that the Council of Ministers simply need to “inform” the LG and not seek his permission. Justice Bhushan in his judgment ordered, “…the Constitutional Scheme does not suggest that the decisions by the Council of Ministers require any concurrence of the LG.”

In layman’s language, the Kejriwal government no longer needs the LG’s permission for implementing proposals such as “doorstep delivery of ration”.

6. Legislative assembly and ministers to govern Delhi

Justice Chandrachud, in part M of his judgment, states that by adopting Article 239AA, Parliament provided Delhi with a special status. The Article 239AA “mandates the existence of a legislative assembly and Council of Ministers to govern the affairs of the National Capital.”

7. ‘Executive power coextensive with Legislative power’

Ensuring that policies framed by the legislative bodies get implemented, the judgment also addressed executive powers. Justice Bhushan in his judgment states, “Executive power is coextensive with the legislative power” and that, “the Policy of legislation can be given effect to only by executive machinery.”

Ensuring that the LG’s office feels the effect of the constitutional bench’s judgment, the AAP swung into action on Wednesday itself. After declaring the judgment “a big victory for the people of Delhi” and “a big victory of democracy”, Kejriwal held a Cabinet meeting and directed functionaries to expedite proposals of doorstep delivery of rations and CCTV.

As of now at least, despite the proclamations by the BJP and the Centre’s counsel, it seems that the responsibility and onus of running the NCT lie firmly at the door of the elected AAP government. No small relief for the people of Delhi, who have been the ones bearing the brunt of the impasse between the LG and the AAP government.