Of Law and Politics in Delhi: A Recipe for Contempt of Court

The incumbent elected government in Delhi resumed power in 2015 with a conclusive mandate from the electorate. However, three years after being in office, it is still mired in complex and at times acrimonious disagreements with another constitutional authority – the office of the Lieutenant Governor of the National Capital Territory of Delhi (“NCTD”). Resolution of differences seemed in sight when the broad contours of power-sharing between the two were finally determined by a Constitution Bench of the Supreme Court (“SC”) in Government of NCT of Delhi v. Union of India and Another (Civil Appeal No. 2357 of 2017) last month. However, since then, the Lieutenant Governor’s (“LG”) insistence on retaining control over ‘services’ and as a consequence bureaucrats defying the government’s transfer orders, the LG requiring prior sanction from the police before the installation of CCTVs, etc. have shown that the issue is far from settled even after the Constitution Bench’s judgment.

The real question here is whether such differences have arisen because the SC’s ruling leaves a genuine room for confusion for them, and over the power-sharing arrangement in general; or whether these differences symbolize, more worryingly, a wilful blindness to the content of the ruling. To answer this question I attempt here to analyse the actions of the LG after and in light of, the SC’s decision. Before that, however, I briefly lay out the text of the Constitution in this regard, followed by a recapitulation of the interpretation given to it by the SC.

LG and the Constitution: Article 239AA

Article 239AA, which comes under Part VIII of the Constitution which deals with Union Territories (“UTs”), lays down the special provisions with respect to Delhi. It sets Delhi apart from other UTs by providing for a directly elected legislative assembly and a Council of Ministers headed by a Chief Minister, to “aid and advice” the LG. The UT of Puducherry seems to have a similar arrangement as well.

It is important to note here that a controversy of the present nature is unlikely to arise in the context of States vis-à-vis their Governors, because it now settled law that a Governor is bound by the “aid and advice” of the Council of Ministers headed by the Chief Minister. The principle underlying this now uncontroverted legal position is the primacy accorded to the elected representatives of the people in the context of a democratic and republican form of government, as opposed to a nominated and to a large extent nominal position of the office of the Governor.

The position of UTs is naturally different since unlike their counterparts in States, LGs enjoy relatively more independent decision-making powers, and an elected legislature and council of ministers are not ordinarily a feature associated with UTs. It is here that Delhi and Puducherry stand out as two exceptions, since both have an elected state assembly and also a council of ministers headed by a chief minister to aid and advice the LG, causing much confusion over who is in charge.

The SC therefore had to determine, inter alia, whether in a UT like Delhi the aid and advice of the Council of Ministers headed by the Chief Minister, binds the LG, like it binds a Governor in a full-fledged State, and if so, then when exactly can the LG exercise their independent power, if any?

Article 239AA of the Constitution empowers the Delhi Legislative Assembly to make laws as any other State is empowered to, the only exceptions being ‘law and order’, ‘police’, and ‘land’. This is based upon the compromise between providing an autonomous / federal structure of government in Delhi (as in other States) on one hand; and the Union’s need to control the NCTD’s administration to the extent its own interests are implicated by virtue of Delhi’s position as the national capital (for instance, housing government buildings, offices of Union Ministries, the Parliament House, embassies and high commissions, etc.), on the other. As a consequence, while ‘law and order’, ‘police’ and ‘land’, have been kept outside the purview of the elected government in Delhi, the Council of Ministers can aid and advice the LG on all other matters included in the State List and the Concurrent List.

The provision is also very clear on what is to be done when there is any difference of opinion between the LG and his Ministers, and provides that in such cases the LG shall refer such differences to the President, and is then bound by the decision given by the President. The LG may, in a rare situation, act independently, when pending such decision by the President the urgency of the matter so dictates.

The SC’s interpretation of Article 239AA: No independent decision-making power with the LG

The SC has echoed the view that the LG has “not been entrusted with any independent decision-making power” under Article 239AA, since all of the LG’s actions can follow only two possible routes:

  1. Where the LG acts upon the aid and advise of the Council of Ministers headed by the Chief Minister of Delhi – which ‘aid and advice’ the SC held to be binding upon the LG (except for ‘law and order’, ‘land’ and ‘police’ related issues); and
  2. In the case of a difference of opinion with the Council of Ministers, the LG may refer the matter to the President for his consideration, and is thereupon bound by the President’s decision on the same. However, the SC limited this power of referrals, to only exceptional circumstances and not all and sundry, routine or trivial differences that the LG may have.

Each of the above two holdings are discussed individually below.

  1. LG bound by the ‘aid and advice’ of the elected government in Delhi

The Supreme Court held that the ‘aid and advice’ provided by the Council of Ministers shall be binding upon the LG. As discussed previously, in holding so, the SC did not lay down any groundbreaking or a new rule of law, rather it simply extended the principle of primacy of an elected legislature in a democracy over that of a nominal and unelected head of state, where they both exist, to UTs. It would defeat the purpose of having such elected representatives in a UT if their decisions were to be of no avail, and hence in such UTs, the aid and advice of the Council of Ministers has been held be binding upon the LG, a holding which is consistent with the rationale of primacy that elected representatives deserve in a democratic and republican form of government. Similarly, LGs remain the sole administrative heads with power to act with relative independence in most UTs which do not have an elected legislature and a Council of Ministers.

The SC has clarified that the only exception to this shall be laws concerning ‘law and order’, ‘police’, and ‘land’, since they have been kept outside the purview of the Delhi Legislative Assembly by express words of Article 239AA.

It would follow, therefore, that but for ‘law and order’, ‘police’, and ‘land’, the LG is bound by the aid and advice of the Council of Ministers on every other matter.

  1. In rare cases, the LG can refer exceptional disagreements with the Ministers / matters affecting the Union, for the President to decide.

The SC has held that the power of the LG to refer to the President “any matter” over which a difference of opinion has arisen does not mean that “every matter” over which the LG has a disagreement with the Ministers has to be referred to the President. The ordinary rule is that the LG would be bound by the aid and advice of the Council of Ministers headed by the Chief Minister of Delhi, regardless of the LG’s differences with such aid and advice, and it is only in rare and exceptional situations that the LG may not choose to follow such aid and advice and seek the President’s consideration.

Justice D.Y. Chandrachud’s concurring opinion provides some insight into the yardstick by which we can determine what constitutes the ‘exceptional’ nature for the purpose of exercise of this power of referral. He elucidates that it is not “every trivial difference” of opinion with the Ministers for which the LG can reserve the matter for the President’s consideration, but only “substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union” (say, the Delhi Government is not unilaterally empowered to declare a full-statehood, or acquire land which has been allocated by the Union to a High Commission or a Union Ministry, etc).

Important insights into this power of referral are also available from the opinion written by the Chief Justice of India Dipak Misra (speaking for himself, Justice Sikri and Justice Khanwilkar) where again, this power of referral has been described  as an exception and not a general rule. In fact they go on to say that “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” – a statement which gains significance given the LG’s position on a host of administrative issues preceding the judgment. It is noteworthy that the Chief Justice’s opinion condemns an “obstructionist” approach and calls for a constructive mindset in the exercise of this rare power by the LG.

Now that the SC has pronounced upon the restricted and exceptional nature of the power of referral, with some benefit of hindsight we may see how the LG’s invocation of this power has fared against the interpretation later given to it by the SC. It is instructive to note that of the 17 Bills passed by the Delhi Legislative Assembly in 2015, the then LG Najeeb Jung reserved 12 for the final approval of the Centre (i.e. roughly 70% of the Delhi Legislative Assembly’s business). These included the Delhi School (Verification of Accounts and Refund of Excess Fee) Bill 2015, Delhi School Education (Amendment) Bill 2015, Right of Children to Free and Compulsory Education (Delhi Amendment) Bill 2015, the Janlokpal Bill 2015, the Minimum Wages (Delhi Amendment) Bill 2015, and the Delhi (Right of Citizen to Time Bound Delivery of Services) Amendment Bill 2015.

At the face of it, none of the above Bills seem to implicate any vital interest of the Union involved, rather much to the contrary, all of these seem central to the essential and core administrative concerns of the national capital and its routine / day-to-day administration. These Bills are a clear example of the fact that the power to reserve a disagreement for the President’s consideration has until now been exercised most extensively by the LG, and as a matter of general procedure – contrary to how the SC later interpreted it.

The dispute on control over ‘services’: No room for ambiguity

When the controversy over who retains control over ‘services’ comes up in the next round of litigation, where the Delhi Government is seeking a specific issue-wise adjudication from the SC, it is likely that the LG will argue that his difference of opinion with the Council of Ministers with respect to ‘services’ constitutes a difference of opinion of the exceptional nature as envisaged in the judgment, and hence such decisions can be reserved for the President’s consideration. However, this argument would not be in line with the SC’s understanding of what constitutes such exceptional circumstances, since according to the SC these are indicative of issues “which impact upon the status of the national capital or implicate vital interests of the Union” (Justice Chandrachud’s concurring opinion, as already noted above).

‘Services’ here, however, mainly includes transfers and postings of administrative officers, which cannot at the face of it be taken to mean an issue affecting the vital interests of the Union. In fact, much to the contrary, it very much at the heart of day-to-day administration of the national capital.

Let us not forget, however, that it is not the LG’s position, to begin with, that he should be entitled to reserve the issue of ‘services’ for the President’s consideration, rather he seems to be under the conception that he can act independently on it. This is evident from media reports which claim that the LG has been advised by the Union Home Ministry “to keep control” over ‘services’. This in the very first instance goes against the SC’s decision which clearly held that the LG has “not been entrusted with any independent decision-making power” since he can either act on the ‘aid and advice’ of the Central Government, or in exceptional cases reserve a matter for the President’s consideration.

It emerges then, that the LG’s position that ‘services’ would come under his purview is contrary to what the SC held since the only matters outside the elected government’s preview have been already clearly spelt out (being ‘law and order’, ‘police’ and ‘land’), and the LG is bound by the elected government’s decisions (read ‘aid and advice’) on all others, which would include ‘services’.

CCTVs and ‘law and order’: The LG may have a case

It is noteworthy that the argument with respect to CCTVs is not likely to be so one-sided since it comes close to the ‘law and order’ function of the government which under Article 239AA is outside the purview of the elected government in the national capital. It remains to be seen what view is taken by the Supreme Court on this matter.

Conclusion

Even though it is clear that the SC’s judgment last month, defining the power-sharing arrangements between the elected government in the national capital and the LG, has not laid the dispute to rest, it emerges that at least with respect to ‘services’, the LG’s position seems to be in direct contradiction with the SC’s ruling, since the judgment itself has not left any ambiguity in this regard; even if the LG may have valid points on retaining control over CCTVs.

It may also be instructive for us to note that legal considerations may not be all which meet the eye in the political tussle in Delhi; however the present controversy and the LG’s actions are walking the thin line where politics is dangerously close to risk contempt of court.

A modified version of this piece earlier appeared in TheWire.

Pranav Verma is an advocate based in Delhi.

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