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LG bound by ‘aid and advice’ of Council of Ministers

Objective of election and power of the elected representatives has been unfolded in the Supreme Court Verdict laying broad parameters for governance in Delhi, which stated that the Lieutenant Governor is bound by ‘aid and advice’ of the popularly elected government and both have to work harmoniously with each other. It noted that there is no room for anarchy or absolutism in a democracy.

A five-judge Constitution Bench of the Supreme Court delivered on Wednesday July 4, 2018, its judgment in National Capital Territory of Delhi v Union of India: “Working a Democratic Constitution”, which correctly identifies representative democracy as a fundamental feature of the Indian Constitution, and correctly interprets Article 239AA in a manner that, within the textual boundaries of the provision, strengthens representative democracy. Its analysis of the constitutional history of Delhi, and the application of constitutional principles to the interpretation of Article 239AA, repays close study. At the heart of the dispute lay two articles: Article 239AA(3)(a), and Article 239AA(4). Earlier, the Delhi High Court in its August 4, 2016 verdict had declared that the L-G has “complete control of all matters regarding the National Capital Territory of Delhi, and nothing will happen without the concurrence of the L-G.” NCT government had filed appeal against this judgement

Article 239AA has culminated through incremental amendments to the Constitution that Delhi moved to a representative government. During this time, the position of the Administrator was transformed into the Lieutenant Governor (LG), and he became a representative of the central government in Delhi. This, ultimately, is what led to the constitutional ambiguity: in Indian states, the equivalent of the LG – the Governor – was little more than a titular head, bound to act upon the “aid and advice” of the elected government, with only a narrowly circumscribed sphere of discretion.

National Capital Territory (NCT) of Delhi has a “special status” and is not a “full state” and neither just a Union Territory. Delhi has an entire article dedicated to it: 239AA, which, read with the GNCTD Act (The Government of National Capital Territory of Delhi Act, 1991) and the Allocation of Business Rules, sets up a complicated legal structure defining how governance is to be carried out in Delhi.

This legal structure envisages two constitutional authorities: the elected Chief Minister of Delhi (at the head of the Council of Ministers) and the Lieutenant-Governor, the appointee of the central government.

Chief Justice of India (CJI) Dipak Misra, who wrote the opinion for himself, and Justices A.K. Sikri and A.M. Khanwilkar held that except for issues of public order, police and land, the Lieutenant Governor is bound by the “aid and advice” of the of the Council of Ministers: “Aid and advice in Article 239AA(4) has to be construed to mean that the LG is bound by the aid and advice of Council of Ministers…The L-G has not been entrusted with any independent decision-making power”.

Justice D.Y. Chandrachud observed in his separate opinion, “Real authority to take decisions lie in the elected government. This is the meaning of ‘aid and advice.’ Titular head (LG) has to act in accordance to aid and advice.” “The LG must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved, to attempt it through the Council of Ministers.” He concluded that there is no independent authority with the LG to take decisions except in matters under Article 239 or those outside the purview of the National Capital Territory (NCT) government.

Justice Ashok Bhushan while broadly concurring with the other two judgments holds that the “LG has to be kept informed of all proposals, agendas of meeting and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through the proposals and decisions so as to enable him to exercise the powers as conceded to him under 1991 Act and Rules 1993… the purpose of communication is not to obtain his concurrence….”, Justice Ashok Bhushan observed: “The ‘aid and advice’ given by the Council of Ministers is binding on the LG, unless he decides to exercise under the proviso to refer any matter to the President for a decision.”

CJI interpreted the phrase “any matter” in the proviso to Article 239AA(4) as not “every matter.” Every “trivial difference of opinion” between the LG and the NCT government cannot be referred to the President for a decision. The issues referred should be of substantive or national importance.

Justice Chandrachud agreed that the elected representatives would be reduced to a cipher if ‘any matter’ in Article 239AA(4) was interpreted as every matter of governance, and stated: “This Constitutional Court would be doing a disservice if an elected government is reduced to a mere form without substance.”

CJI wrote that a reference to the President was only an exception and not the general rule. “In this context, even in case of differences of opinion, the LG and the NCT government should act with constitutional morality and trust for each other. The LG cannot act without applying his mind and refer everything to the President.”

The NCT government need only to inform the LG of its “well-deliberated” decisions. The government need not obtain his “concurrence” in every issue of day-to-day governance.

CJI, referring to the prolonged spat between the LG and the Kejriwal government on various issues, from a freeze on appointment of bureaucrats to mohalla clinic staff to school teacher, said the spirit of collective responsibility in the Constitution should not be “lost in drama.” “Constitutional discord should be avoided. There is a need for real discipline and wisdom.”

A freeze on government decisions by the LG negates the very concept of “collective responsibility.” The governance of the National Capital demands a “meaningful orchestration of democracy” and a “collaborative federal architecture.”

Justice Chandrachud observed that the collective responsibility means government speaking in one voice to the people whose aspirations the government reflects.

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