L-G seems to have primacy under Constitution, says Supreme Court

New Delhi: The Supreme Court on Thursday orally observed that the lieutenant-governor of Delhi has overriding powers under Article 239AA of the Constitution and that the Delhi government could not claim absolute executive powers in the administration of the Union Territory.

A five-judge Constitution bench of Chief Justice Dipak Misra and Justices A.K. Sikri, A.M. Kanwilkar, D.Y. Chandrachud and Ashok Bhushan, made this preliminary observation when senior lawyer Gopal Subramaniam, representing the AAP government, argued that the L-G had created a situation where no bureaucrat is obeying directions of ministers and chief minister Arvind Kejriwal. The L-G, he added, was holding meeting separately with the officials without ministers.

During the hearing, Mr Subramaniam told the bench that “an elected government cannot be without any power”.

The bench commenced its hearing on a batch of special leave petitions filed by the Delhi government against a judgment of the Delhi high court which held that the L-G was the administrative head and was not bound by the aid and advice of the chief minister or council of ministers.

The HC also held that the then L-G Najeeb Jung was its administrative head and all decisions will have to be taken with his consent and concurrence.

Assailing this finding Mr Subramanium said the HC verdict subverted the democratic governance structure put by a constitutional arrangement, which recognises Delhi’s special powers despite being a Union Territory. He argued that Article 239AA could not be used by the L-G to frustrate the constitutional mandate for an elected government in Delhi.

The bench observed that the provision is an in-built exception provided in the Constitution and prima facie it appears that overriding powers are given to the L-G through Article 239AA. The Delhi government could not claim absolute executive powers and it should exercise its executive functions within the field of its legislative powers, excluding land, police and law and order. Mr Subramanium argued that a harmonious interpretation of Article 239AA was needed to fulfil constitutional mandate for a democratic elected government in Delhi. The L-G must exercise his functions with the aid and advice of the council of ministers, which has a collective responsibility and accountability to the people.

As for the contention that the L-G was exceeding his powers, the court told the AAP government to spell out the specifics to enable the court to assess its points.

Justice Chandrachud said the L-G had to clear files within a reasonable period of time and if there is a delay, specify the reasons on file.