LG Bound by Advice of Council of Ministers: Supreme Court

The Arvind Kejriwal government received a potent power booster as the Supreme Court ruled that although Delhi isn’t a full-fledged state, the lieutenant governor is bound by the advice of the council of ministers, except for a few subject matters such as land, police and public order reserved for the Centre.

In a unanimous ruling, a five-member Constitution bench led by the chief justice of India Dipak Misra overturned the August 2016 judgment of the Delhi high court, which had ruled that since Delhi was a Union territory all powers lay with the central government, not the elected Delhi government. The high court judgment had prompted the Kejriwal government to appeal to the apex court.

The Supreme Court judgment capped a relentless tussle for powers of governance between the Kejriwalled Aam Aadmi Party government and the Narendra Modi-led National Democratic Alliance government at the Centre apparently in Delhi government’s favour, even as both sides sought to claim victory. “The lieutenant governor... is bound by the aid and advice of his council of ministers in matters for which the Delhi legislative assembly has legislative powers,” the court ruled.

The only exception to this rule, it said, was a proviso to Article 239-AA, which allowed the LG to refer to the President any issue on which there was a difference of opinion with the council of ministers. In such a case, the court said, the LG would be bound by the President’s decision.

Rebuffing Kejriwal government’s demand of full statehood for Delhi, the court said that “by no stretch of imagination, the NCT (national capital territory) of Delhi can be accorded the status of a state under our present constitutional scheme”.

However, it said that “the status of the LG of Delhi is not that of a governor… rather he remains an administrator in a limited sense, working with the designation of the LG”.

As per the judgment, the state cabinet will have to routinely convey all decisions taken by it to the LG. In accordance with the 1991 Act and Rules of Business of Delhi assembly, the LG has to be apprised of every decision taken by the council of ministers. But the process of “consultation” with the LG does not mean that the cabinet can take decisions only with the LG’s “concurrence” or “permission”, the court ruled.

The Constitution bench said that “requiring prior concurrence… would absolutely negate the ideals of representative governance and democracy conceived for the NCT”. “Any view contrary would not be in consonance with the intention of the Parliament to treat Delhi government as a representative form of government,” it said in the judgment.

The LG will enjoy the power to differ with the council of ministers, the court said, but it cannot be difference for the sake of difference. It cannot be mechanical or in a routine matter. It has to have a rationale and has to be on a fundamental issue.

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