The Supreme Court on Thursday said the Constitution prima facie gave the Delhi lieutenant governor primacy in administrative matters of the capital, but added that the court could attempt a constructive and harmonious interpretation of the provision to allow the elected government to take decisions in its domain.
The Kejriwal government has complained to the SC that the Centre, through the LG who acted as a “super governor”, had paralysed the elected AAP government by stalling its every welfare scheme.
Article 239AA identifies land, law and order and police as the Centre’s domain to be administered through the LG, while leaving other matters to the city government. Since the formation of the AAP government in 2015, it has been locked in a fierce turf war with the LG over whose writ should run in the city. The Kejriwal government approached the SC after a Delhi high court order upheld the supremacy of the Centre, in turn the LG, in governance of Delhi.
Article 239AA was inserted in the Constitution to give Delhi an assembly and an elected government with a council of ministers headed by a chief minister but without the power to legislate or control land, law and order and police. The Kejriwal government has approached the SC to demarcate the powers between the Centre and the Delhi government for smooth exercise of executive functions by the elected government.
Appearing for the Delhi government, senior advocate Gopal Subramaniam told a bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan that the Centre had chosen to go by the letter of the constitutional amendment and completely ignored the intent behind the provision to give Delhiites a voice in governance to usher in accountability and transparency .
“The LG has been exercising powers in such a manner to completely block Delhi gov ernment and negate the intent and object of Article 239AA which gave a democratically elected government to Delhi,” Subramaniam said.
When the bench said a proviso in Article 239AA prima facie appeared to suggest that the LG had primacy in governance of Delhi, Subramaniam said, “Is it the intent of the constitutional provision to make civil servants openly defy the elected government? Is it the mandate of the constitutional provision that the LG must stall every scheme of the Delhi government -extending the functioning of mohalla clinics for one year, regularising posts of teachers in municipal schools, and filling up of nearly one lakh sanctioned posts at various levels through a transparent process? Now, the ministers as departmental heads have to fall at the feet of the bureaucrats to implement public welfare schemes.
“Bureaucrats pay no heed to orders from ministers and openly say that they will await nod from the LG’s office. Is this what is contemplated in Article 239AA, which makes the chief minis ter accountable to the people?
The LG keeps sitting on files which are required to be cleared to allow day to day functioning of the Delhi government. The Delhi government cannot appoint lawyers of its own choice. If everything is going to be stultified by the LG, why have an elected government at all in Delhi?” The bench understood the letter of the constitutional provision creating functional problem for the AAP government and said a constructive and harmonious interpretation of Article 239AA could be attempted by the apex court.
“The LG cannot stultify the Delhi government by sitting over files. If he has disagreement with the Delhi government on any issue, he could refer it to the President.We can read into the provision that whenever the LG disagrees with the Delhi government on any decision, he must give in writing the reasons for disagreement and send the matter to the President within a certain time frame,” the SC said.
Subramaniam said while interpreting Article 239AA for separation of powers between the Centre and the Delhi government, the SC must keep in mind the practical difficulties posed on a day-to-day basis by the Centre purely going by the letter of the constitutional provision. Arguments will continue on Tuesday .