Delhi not a state but no room for obstructionism, absolutism: SC

New Delhi: In a message to Lt Governor Anil Baijal and Chief Minister Arvind Kejriwal, the Supreme Court in its Wednesday ruling on who administers the capital warned against obstructionism and cautioned against anarchy and absolutism in the power tussle between the Delhi government and the Centre.

In its 535-page judgment copy, the court reminded the LG and the Aam Aadmi Party (AAP) of the constitutional trust to “be exhibited by all constitutional functionaries while performing their official duties”.

* ‘It is a parliamentary form of government and federal balance in mandatory’

The court said the form of governance in the country was guided by the principle of collective responsibility of the Cabinet that owes a duty towards the legislature for every action taken in any of the Ministries and every individual minister is responsible for every act of the Ministry.

“This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the LG, then the concept of collective responsibility would stand negated.”

The ruling by the five-judge bench said the Constitution mandates a federal balance wherein independence of a certain required degree is assured to the state governments.

“As opposed to centralism, 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 which exclusively fall within their domain.”

* ‘No statehood but Lieutenant Governor has to act on aid and advice of Delhi cabinet’

The court clearly ruled out the status of a state to Delhi under present constitutional scheme and said the status of NCT of Delhi was “a class apart” and the status of its LG was not that of a Governor of a state but remains an administrator only “in a limited sense”.

The verdict said the Parliament had provided the capital a directly elected legislative assembly with legislative powers over matters falling within the state list and the concurrent list, barring those excepted, and a mandate upon the LG to act on the aid and advice of the council of ministers except when he decides to refer the matter to the President for final decision.

However, the assembly has no legislative powers on three subjects – land, police and law and order as enshrined in the constitution. The three subjects remain with the central government and powers related to these matters are exercised by the LG in consultation with the Home Ministry.

In respect of other matters, the executive power is to be exercised by the elected government – subject to the constitutional provisions, the court order said.

“Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.”

It said the LG is bound by the aid and advice of the council of ministers.

“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.”

* ‘Lieutenant Governor must not act irrationally, mechanically’

The court emphasized that the power of the LG represents the exception and not the general rule which has to be exercised in exceptional circumstances keeping in mind among other constitutional requirements “the nurtured and cultivated idea of respect for a representative government”.

“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. The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.”

In case of differences in opinions, the LG and ministers must attempt to settle any point by way of discussion and dialogue.

“The Lieutenant Governor must work harmoniously with his ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance.”

* ‘Lt Governor’s concurrence is not needed’

The court said the LG being the administrative head shall be kept informed with respect to all the decisions taken by the council of ministers.

The terminologies “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the rules governing the NCT lead “to the only possible conclusion that the decisions of the council of ministers must be communicated to the Lieutenant Governor”.

This, however, “does not mean that the concurrence of the Lieutenant Governor is required.

“The communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him.”

* ‘Nobody should feel they have been lionized’

The court asked both the LG and the city government that they should constantly remind themselves that they were constitutional functionaries and “have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner”.

Stressing on the need to have discussion and deliberation, the court said the fine nuances were to be dwelled upon with “mutual respect”.

“Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts.

“Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the constitution and showing veneration to its sense, spirit and silence is constitutional renaissance.

“Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a ‘rational anarchist’, but (it) has no entry in the field of constitutional governance and rule of law.”


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