L-G 'Muffled'!!

A five-judge bench, led by CJI- Dipak Misra himself gave it’s much-awaited decision on the matter between the two giants of Delhi’s three-tier machinery - The L-G- ‘Anil Baijal’ and the Chief Minister of Delhi – ‘Arvind Kejriwal’.

The history of the matter traces back to the time when AAP came into the political picture, and the story has been politically rocky since then. CM Arvind Kejriwal had complaints against the L-G and the Union Government and accused them of interference in the matters of Delhi and not letting the State Government. work smoothly and causing delays due to the imposition of unreasonable barriers in every law made or decision taken. In simpler words, CM asked for space, which is a must in every relationship out there, to produce something fruitful. The continuous ‘Attitude issues and interference’ due to the difference of opinion had proved to be a barrier for the CM and his team in the administration of the state.

Supreme Court demurred at the thought of, an executive representing the center, thwarting the decisions of the legislative team elected by the people. The gravity was in the issue, that the very purpose of a democratic society was failing because the executive is bent on suffocating the people’s assembly. Thus, the unanimous 5-0 verdict upheld the Delhi Govt’s power to legislate on all the matters except Law, Land and Public(Article 239 A (3) ) and ruled that not every file has to be sent to L-G for evaluation but only the decisions are to communicated for approval, and the L-G should refer the case to the president only when there is a huge and reasonable ground for the same.. 

The Supreme Court even directed that the power to refer a decision to the president by the L-G “should be used sparingly and not on each and every occasion” which would obstruct the machinery in the state and delay the processes. Further, Hon’ble Supreme Court advised-cum-commanded the L-G and the ministers to work harmoniously towards the common object, ie. for the state’s welfare. The L-G must not work “mechanically”. He has the right to receive the reports of decisions from the ministers, however, that does not mean that he has the power to resist them, unless there is a difference of opinion that holds urgency. The “concurrence of L-G is not required”, ruled the bench. To understand the story better, let’s include our Constitution in the discussion.

Legal Analysis

The confusion festered on two sub-clauses of the article 239 A of the Constitution of India - Sub Clause 1 and Sub Clause 4 (Special Provisions with respect to Delhi) which was duly clarified by the SC in the comprehensive judgment.

239 A (1) - states that the L-G has been appointed as the designated  Head/Administrator of Delhi National Capital Territory, which helped L-G lionize himself.

239 A (4) says that - There shall be a Council of Ministers, with the Chief Minister at the head to ‘aid and advise’ the Lieutenant-Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has the power to make laws, except in so far as he is, by or under any law, ‘required’ to act in his discretion.

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.

Both the articles when interpreted by the two parties were believed OR held to be favoring the one reading. Blame the natural human tendency.

Under Article 239 AA - the legislative assembly of National Capital Territory of Delhi has all the powers with the exceptions that Entries 1, 2 and 18 of the List II are not within the legislative competence of the legislative assembly. Certain categories of bills require the prior approval of the Central Government for introduction in the legislative assembly. Some Bills, passed by the legislative assembly of the Union Territory of Puducherry and National Capital Territory of Delhi are required to be reserved for consideration and assent of the President.

The Assembly cannot pass a law that is in contravention to the Centre’s law. The bill passed by centre is done only after political calculations of Central Government. The Full State has some crucial powers which a Half State does not have such as land, public order, police, health and education(partial), traffic police, Licensing. These UTs even cannot take a foreign loan or raise money from the market. If the half state wants all above power under their control then a constitutional amendment is necessary.

Delhi Police: Delhi police do not fall under Delhi state government; it reports directly to Union Home Ministry. 

Land matters: Here the files of land acquisition come to the Chief Secretary of state, but the Delhi Development Authority (DDA) files go to Lieutenant Governors who is the chairman of DDA. Whereas, this matter in the Full States comes under the Chief Minister. 

Power with Delhi government: Delhi government has Jal Board, Power, Transport, PWD, Health (minus health and sanitation, which is with MCD), and Education (minus some primary schools). 

Analysis

We can very well carve out that the confusion was posed after the interpretation of the law by the different authorities in their best interest instead of the state’s. Thus, it was necessary for a neutral to clear out the rights and powers of both the pullmen of Delhi, and no one could do it better than SC, and holding its reputation up, SC justified it’s role yet again. Also, it did not hesitate in using harsh terminologies so as to avoid any such clashes in future and clearing the slightest of doubts.

Hopefully, the structure of the law is now clear in heads of the ministers and they understand the horizon of checks and balances and their importance in the working of Delhi. Let's hope to see the results intended by SC and constitution to show up in Delhi. Let's hope to see efficient and effective measures from now on. Let's hope to see a better Delhi. Let's hope!