SC restricts power of Lieutenant Governor in Delhi

The Supreme Court on Wednesday ruled that the Lieutenant Governor in Delhi has to act in aid and advice of the elected government, keeping in mind the principles of collaborative federalism and constitutional pragmatism and balance.

In a crucial decision in the ongoing power tussle between the Arvind Kejriwal-led Delhi government and the Union government, a five-judge Constitution bench presided over by Chief Justice Dipak Misra defined the power of the Lieutenant Governor. “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 court said.

It held that a balanced federal structure mandates that the Union does not usurp all powers and the states enjoy freedom without any unsolicited interference from the central government with respect to matters exclusively falling in their domain.

The top court in a unanimous verdict said the law and the rules have to be given a purposive interpretation to ensure the quintessential democratic nature of Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated.

“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 taken by the President on a reference being made by him,” CJI Misra wrote, along with Justices A K Sikri and A M Khanwilkar.

The court also said 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. He must attempt to settle any point of difference by way of discussion and dialogue, it said.

The scheme that has been conceptualized by the insertion of Constitution Articles 239AA and 239AB read with the provisions of the Government of NCT Delhi Act, 1991 and the corresponding Transaction of Business Rules, 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers.

“But does not mean that the concurrence of the Lieutenant Governor is required,” the court added.

“It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy,” the bench said.

In his separate judgement, Justice D Y Chandrachud said the real decision-making authority in a democratic form of government vests in the executive.

“The Lieutenant Governor must either act on the basis of aid and advice or, where he has reason to refer the matter to the President, abide by the decision communicated by the President. There is no independent authority vested in Lieutenant Governor to take decisions,” he said.

Justice Ashok Bhushan, in his own concurring judgement, said the Constitutional Scheme does not suggest that the decisions by the Council of Ministers require any concurrence of the Lieutenant Governor.