Judgment lofty, but advice generic: Takeaways from SC verdict on Centre vs Delhi govt power tussle
In a 535-page verdict, the Supreme Court attempted to end the friction between the Delhi government and the Centre's representative, the lieutenant-governor. On the face of it, the judgment seems to have rapped the L-G for some of the intransigent positions his office has taken, as claimed by the Arvind Kejriwal-led Delhi government.
In a 535-page verdict, the Supreme Court attempted to end the friction between the Delhi government and the Centre's representative, the Lieutenant-Governor (L-G). On the face of it, the judgment seems to have rapped the L-G for some of the intransigent positions his office has taken, as claimed by the Arvind Kejriwal-led Delhi government. The Delhi chief minister, expectedly, is seemingly happy with the 'victory.' However, there are two immediate issues that come to mind after reading the Supreme Court judgment.
One, the summary of the judgment. What the apex court has done is reiterate, in a long-winding manner with lots of legal anecdotes and ibids and references, what the special provisions of Article 239AA have said long ago. It has neither given nor taken an inch from these provisions.
What then makes the judgment lofty is the constitutional obligation the court refers to, for both the L-G and the Delhi government in ensuring a harmonious administration of the territory. It reminds both of them to always make and see legal sense in whatever they do.
The niggling issue is the complaint of the Delhi government that the L-G refers contentious issues to the President.
The special provision, Clause 4 of 239AA says: "Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary."
The Supreme Court said: "The power given in proviso to sub-clause (4) to LG is not to be exercised in a routine manner (emphasis author’s) rather it is to be exercised by the LG on valid reasons after due consideration, when it becomes necessary to safeguard the interest of the Union Territory."
That's it. The "on any matter" versus "not… in a routine manner" issue.
The court answers the riddle in the same judgment: "The words “any matter" (emphasis added) employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean "every matter" (emphasis added). The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. 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."
Has the court thus laid to rest the enigma of when the L-G should go to the President? Perhaps no. What is this "exceptional circumstance" that the court is talking about? The court refers to the phrase in all possible constitutional contexts, ranging from trust and morality to federalism and balance, objective and representative governance. That, for a layman is quite a wide vista, isn't it? In fact, can any "circumstance" be explained or justified by invoking any of these categories?
The court answers this too, because it says: "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." But isn't that quite a generic advice?
What is the political interpretation of the judgment?
On the face of it, the Aam Aadmi Party is happy. But look at the flip side. The judgment has swatted the ruling party’s "movement" it was whipping up in the last month or so. The issue with Kejriwal's tweet thanking the judiciary, stands closed. Is that a smirk on the BJP's face that one notices? The judgment has come in handy for the BJP-led NDA government at the Centre, which needed a face-saving device to extricate itself from the Delhi imbroglio that was fast unfolding into a capital hysteria.
Till the next confrontation...
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