Constitutional provisions

  • 69th CAA 1991 provided special status to Delhi.
  • Article 239AA deals with Special Status of Delhi
  • Under Article 163, the governor has to act on the aid and advice of the council of minister except in the case where he has to exercise his discretion.
  • State can make laws regarding matters in state list &concurrent list except three matters on state list that is, Public order, police and land.
  • Laws of Parliament prevail over those of made by the state assembly.
  • Presidential rule can impose on Delhi based on the report of Lt. Governor or otherwise.
  • No ordinance can be promulgated by the Lt. Governor without the prior permission of the president.

Primacy in case of difference of opinion

  • The proviso to Clause (4) of Article 239 AA: A LG, could disagree with many decisions of elected government and refer them to the president, which means the central government.
  • This virtually nullifies the executive power vested in the council of ministers
  • But the purpose of the constitutional amendment was to provide a democratic government for Delhi and not to enhance the powers of the LG.
  • Thus, it cannot be the intention of the lawmakers to take away the powers vested in the elected government and establish the primacy of the LG.

SC’s guidelines for the LG’s conduct

  • It delineates the powers of the two branches of the executive in Delhi.
  • The L-G is bound by the aid and advice of the Council of Ministers. In case of difference of opinion, the L-G should straightaway refer the dispute to the President for a final decision.
  • The Lieutenant-Governor should act as a “facilitator” for good governance in the national capital and not as an “obstructionist”.
  • The Lieutenant-Governor’s authority, saying he cannot exercise his discretion in “each and every matter” of daily governance. His discretionary powers are in fact limited to only matters in the State List — public order, police and land — over which the legislative power of the Delhi Legislative Assembly stand excluded under Article 239AA.
  • The NCT government need only to inform the L-G of its “well-deliberated” decisions. The government need not obtain his “concurrence” on every issue of day-to-day governance.
  • The elected government could make policies on laws enacted by its own Assembly. The executive power of the NCT government was co-extensive with its legislative powers.

Why Delhi cannot be a full- fledged state?

  • It houses federal institutions, a diplomatic community and other national and international institutions.
  • Therefore, an arrangement being made, according to which the primary control over a city that serves as a nodal centre for the entire nation vests to central government.
  • The Supreme Court followed the 1987 Balakrishnan report to conclude that Delhi is not a State.
  • Balakrishnan report had envisaged that Delhi could not have a situation in which the national capital had “two governments run by different political parties. Such conflicts may, at times, prejudice the national interest.”
  • Delhi as the national capital belongs to the nation as a whole.
  • If Delhi becomes a full-fledged State, there would be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi.
  • Parliament would have limited legislative access and that too only in special and emergency situations.
  • The Union would be unable to discharge its “special responsibilities in relation to the national capital as well as to the nation itself”.

Why Delhi needs full statehood?

  • Unlike other capitals across the world, Delhi with a population of nearly 19 million and an area of almost 1,500 sq. km, it is bigger than many nations.
  • In a federal system, state governments have clearly set out spheres of influence making them all powerful when compared to the national government.
  • Delhi has an elected assembly, a chief minister and a council of ministers, and three mayors, a situation that created multiplicity of authority and lack of accountability.
  • Conflicting authorities has created various civic problems across Delhi and it also affected development of the city.
  • Hence the people of Delhi deserve a fully functioning and accountable administration, one that is elected by them.

Way forward:

  • Delhi Government is a democratically elected government with overwhelming majority.
  • The right to receive information doesn’t give the LG the right to interfere.
  • However, Rule 45 of the transaction of business rules says that Delhi government can have powers on these three subjects if there is an order issued by the Central Government.
  • Transaction of business rules says that before appointing a chief secretary a reference has to be made to the central government.
  • The Constitution, NCT act of Delhi and Transaction of Business Rules clearly define what LG can do. In case of a dispute or difference of opinion between LG and council of ministers, LG could have called the minister concerned to discuss the matter.
  • LG’s role is not that of a Constitutional figurehead, though the ultimate responsibility for good administration of Delhi is vested in the President acting through the Administrator.
  • The Administrator has to take a somewhat more active part in the administration than the Governor of a State.
  • The Supreme Court recommended that the “best way” of solving a difference of opinion between LG and council of minister is to let the LG refer such differences of opinion to the President for a final decision.
  • The position of the LG is no better than the position of the governor of a state—except that he can withhold any decision of the council of ministers for the consideration of the President.
  • Washington DC and Mexico City, about the same size as Delhi are federal district but it enjoys much less autonomy than the Delhi government. For all practical purposes NDMC should be designated as National Capital Area. And the remaining portions of Delhi should be given full statehood.
  • The democratic principle and federalism have to play a dominant role. \
  • Like democracy, federalism is also one of the un-amendable basic features of the Constitution.
  • The LG’s powers are narrower as compared to that of the governors who can exercise some powers in their discretion too.

Conclusion

The working of the Constitution depends not only on its provisions but also on an understanding of its goals and ways of realising them. In that context, neither the representatives of the people as legislators and ministers nor the representative of the c entre in the states or Union territories as governors or L-Gs are expected to act in a fashion that makes the Constitution unworkable. In that respect, today’s judgement is highly educative for those who work as per the Constitution as well as for every citizen of the country. Let us hope in all respects the Constitution is operated as smoothly as was expected by it makers which is ideally reflected in today’s judgement.

Mains Question: Compare and contrast powers of Delhi Lieutenant Governor’s with that of other state Governor’s?