Delhi's elected government, not L-G, has real power: Key points of Supreme Court verdict in AAP vs Centre case

The Supreme Court (SC) on Wednesday  unanimously ruled that the elected government has the real power in Delhi, not Lieutenant Governor Anil Baijal. In a majority decision by a five-judge bench, Chief Justice of India Dipak Misra made a number of observations in the fight for power in Delhi between the Arvind Kejriwal-led Aam Aadmi Party government and the Centre, represented by L-G.

Three of the five judges hearing the matter were of the opinion that the L-G cannot interfere in every decision of the elected government. The Supreme Court also emphasised that Delhi cannot have the powers of a full state — another demand of the AAP government. However, one of the key points the Supreme Court made in its judgment was that the L-G is “bound by the aid and advice of the Council of Ministers of the Government of Delhi”.

Here are some of the key observations made by the Supreme Court:

- The majority verdict, which was backed by CJI Misra and justices AK Sikri and AM Khanwilkar, said the government in the National Capital Territory (NCT) should be allowed to make laws. “Executive powers should be exercised by the elected government,” the bench said.

- Referring to the ruling of a nine-judge Constitution Bench, which upheld Delhi’s status as a Union Territory, the Supreme Court said it is clear that “by no stretch of imagination, the NCT of Delhi can be accorded the status of a state under our present constitutional scheme”.

- The judgment, read out by Misra, stated: “The L-G is bound by the aid and advice of the Council of Ministers of the Government of Delhi, subject to the provision to Article 239AA, to refer matters to the president. He cannot act independently… The Council of Ministers has to communicate its decision to the L-G, but this does not mean that it is bound by the L-G.” All five judges of the bench agreed with this point.

- “…This position holds true so long as the L-G does not exercise his power under the proviso to clause (4) of Article 239AA”, which states that the L-G can refer a matter to the President of India if there is doubt about under whose purview it falls. “The L-G has not been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of the Council of Ministers, or he is bound to implement the decision made by the president on a reference being made by him.”

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- “The L-G cannot act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the president,” the judgment read. “The difference of opinion between LG and Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.”

- The Supreme Court bench said that the Constitution of India has mandated a federal balance wherein independence is assured to the states… A balanced federal structure mandates that the Union does not usurp all powers, and states enjoy freedom without interference from the Centre in matters exclusively in their domain."

- “Ours is parliamentary form of government guided by the principle of collective responsibility of the Cabinet… The principle of collective responsibility is of significance in the context of ‘aid and advice,’” the CJI said in the verdict. “If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to differences with the L-G,the concept of collective responsibility would stand negated… the L-G can’t interfere in every matter. He should interfere only in exceptional matters to balance the constitutional federal structure.”

- Under Article 239AA, the executive power of the government of NCT-Delhi “is co­extensive with the legislative power of the Delhi Assembly”, and so the “executive power of the Council of Ministers spans over all subjects in Concurrent List and all but three subjects in the State List”, referring to land, police and public order. “However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the state must conform to the law made by the Parliament.”

- The Union of India has the exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List (land, police and public order), in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi."

- “There is no space for anarchy and absolutism in our Constitution”, and the L-G does not have to refer every matter to the President of India. " The L-G must remember it is the elected government that is answerable to the people. Governance will come to a standstill if every decision is referred to the president," Justice DY Chandrachud said. “The popular will of the people, which has its legitimacy in a democratic, set up cannot be allowed to lose its purpose in simple semantics.”

- “The status of the NCT of Delhi is sui generis, a class apart, and the status of the L-G is not that of a governor. He remains an administrator, in a limited sense,” the court said, in its interpretation of  Article 239AA of the Constitution, which gives special status to Delhi as the NCT, stating that the region will be under the control of the L-G. “While interpreting Article 239AA, the court has to further democratic values. In a democratic governance, the real power and substantive accountability is vested in elected representatives… the sovereignty of the people, the democratic way of governance and secularism is intrinsic to the Constitution. The basic structure imposes restrictions on the exercise of constituent power,”  Justice Chandrachud said.

- “The spirit of constitutional morality negates the concentration of power in the hands of a few… the decisions by constitutional functionaries must have normative reasonability and acceptability. Principles of constitutional governances have the twin principles of fiduciary nature of public power and system of checks and balances,” the CJI read out. The CJI and justices Sikri and Khanwilkar gave the majority verdict.

- “Constitutional morality is the guiding force for all. Every decision of the government should get the prior consent of the L-G,” Chandrachud said. But the court also observed that the L-G’s consent was not mandatory in every matter. “The opinion and decision of the elected government has to be respected, but the Constitution does not provide that the L-G has to concur with all decisions of the government,” Justice Ashok Bhushan observed.