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Wednesday, July 4, 2018

Lieutenant Governor bound by ‘aid and advice’ of elected Delhi govt: Supreme Court

Lieutenant Governor bound by ‘aid and advice’ of
elected Delhi govt:  Supreme Court

New Delhi: A five-judge Bench of the Supreme Court on Wednesday unanimously held that the Lieutenant Governor (LG) of Delhi is bound by the “aid and advice” of the popularly-elected Arvind Kejriwal-led Aam Aadmi Party (AAP) government and both have to work harmoniously with each other. It noted that there is no room for anarchy or absolutism in a democracy.

Chief Justice of India (CJI) Dipak Misra, who wrote the opinion for himself, and Justices A.K. Sikri and A.M. Khanwilkar held that except for issues of public order, police and land, the Lieutenant Governor is bound by the “aid and advice of the Kejriwal government, which has the public mandate.”

“Real authority to take decisions lie in the elected government. This is the meaning of ‘aid and advice.’ Titular head (LG) has to act in accordance to aid and advice,” Justice D.Y. Chandrachud observed in his separate opinion. He concluded that there is no independent authority with the LG to take decisions except in matters under Article 239 or those outside the purview of the National Capital Territory (NCT)  government.

Every “trivial difference of opinion” between the LG and the NCT government cannot be referred to the President for a decision. The issues referred should be of substantive or national importance. In this regard, the CJI interpreted the phrase “any matter” in the proviso to Article 239AA(4) as not “every matter.”

Elected representatives would be reduced to a cipher if ‘any matter’ in Article 239AA (4) was interpreted as every matter of governance, Justice Chandrachud agreed.

“This Constitutional Court would be doing a disservice if an elected governmentt is reduced to a mere form without substance,” he wrote.

The CJI wrote that a reference to the President was only an exception and not the general rule. “In this context, even in case of differences of opinion, the LG and the NCT government should act with constitutional morality and trust for each other. The LG cannot act without applying his mind and refer everything to the President.”

The CJI, however, adhered to the nine-judge Bench judgment of the Supreme Court in the NDMC versus State of Punjab to conclude that Delhi is not a ‘State.’ The judgment also held that the LG is not a Governor but only an “administrator in a limited sense.”

“Real and substantive power lies with the elected representatives in a democracy. They owe responsibility to the legislature,” Justice Chandrachud observed, agreeing with the CJI that a “mixed balance” has to be struck considering the special status of the Delhi and “fundamental concerns” as Delhi is the National Capital.

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