The Lieutenant-Governor (L-G) of Delhi cannot stultify proposals or schemes forwarded by the Council of Ministers to him by simply sitting on it, Justice D.Y. Chandrachud orally observed on Thursday.
His observations came on the first day of a five-judge Constitution Bench hearing of a batch of nine appeals filed by the Arvind Kejriwal-led AAP government against an August 4, 2016, judgment of the Delhi High Court.
The AAP government argued that the High Court declared that the LG has “complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the LG.”
The 69th Amendment of the Constitution in 1992 gave the National Capital of Delhi special status with its own democratically elected government and legislature. Sub-section (4) of Article 239AA mandates that a Council of Ministers shall aid and advise the LG in his functions regarding laws made by the Assembly.
Focus on proviso
The focus of the current controversy is a proviso to Article 239AA (4), which mandates that in case of a difference of opinion between the LG and the Council of Ministers, the former has to refer the issue to the President. In the meanwhile, while that decision is pending before the President, the LG, if the matter is urgent, can use his discretion to take immediate action.
The Constitution Bench led by Chief Justice Dipak Misra prima facie said the Delhi government’s ability to ‘aid and advise’ the Lieutenant Governor is limited to subjects other than public order, police and land in the National Capital. It said that the proviso to Article 239AA (4), on plain reading, seems to give primacy to the Lieutenant Governor. Justice Ashok Bhushan remarked that the LG is entitled to take a different view and is not bound by the aid and advice of the Delhi Cabinet.
Mr. Subramanium alleged that the LG has misused the discretion in this proviso to block governance to such an extent that decisions from appointment of teachers in municipal schools to opening of mohalla clinics have been pending for over a year. The Chief Secretary and other officers simply forward the files to the LG, where it remains indeterminately.