Lieutenant Governor v/s Government: Government Of NCT Delhi v/s Union Of India: Civil Appeal 2357 Of 2017 (2018 Judgment)

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The issue raised in this case is about the stature of the National Capital Territory and the Administrators of NCT Delhi analyses and has inputs about the distribution of functions and powers of the Government and that of the Central Government of NCT Delhi who is the nominee of the President of India.

A writ petition was filed with regards to the powers that a government that has been elected for NCT Delhi may function in a way in which NCT Delhi could be administered properly. The President of India is empowered to govern a Union Territory and may also do so through an Administrator or a Lieutenant Governor who is suitable and able to discharge its duties properly.

The territory of Delhi is a Union Territory and is continued to be managed as both a Union Territory and NCT Delhi by the President of India. Union Territory comes within the scope of the Lieutenant Governor and the Central Government; and the two have intertwining responsibilities. Thus, the scope of both the body of power is in question.

Issue:

Whether Delhi retain its status as a Union Territory with the Lieutenant Governor as its head of administration or is it considered a special State where the Lieutenant Governor is obligated to act on the counsel of the Council of Ministers?

Analysis
The previous verdict of the Hon'ble High Court at Delhi was contested in the Hon'ble Apex Court by the appellants. The Appellants in the immediate case contended that the Lieutenant Governor(LG) is not a Viceroy but an agent of the President. The authority exercised by the President shall be completely dependent on the President of India. It was underscored that LG is bound to act under the guidance of the Governor.

They also contended that Article 239AA[1] of the Constitution of India must be reviewed so as to prevent any instability and clarify that the executive and legislative powers of the Government are concurrent. As per Article 239AA[2], the State Assembly is empowered to make laws on all subjects of the State List (List II) barring three entries and all the entries of the Concurrent List (List III). The Appellants contended that separation of power is needed so as to prevent any interference of the Central Government.

The law-making body must possess absolute jurisdiction over the implementation of legislations and no other entity should have the power intervene with this crucial responsibility. It was also contended that the influence of the Governor delays the procedure. They stated that the LG must exercise ceremonial powers and not be the actual head of the State. Delhi is an accountable government and not a delegated governance. And thus, the LG is not empowered to interfere in the affairs of Delhi but the Council of Ministers(CoMs) are duly empowered for the same.

The LG shall be allowed to interfere with the affairs of Delhi only when it is jeopardised or exceeds its mandate and when there is any dissent. It was contended that Delhi has greater bureaucratic powers than other Union Territories which can be clearly observed after the revision and promulgation of the same.

The Respondents in this immediate case contended that despite addition of Article 239AA[3], the Head of the State is the President and shall remain the head of the executive. The LG represents the President of India and which affects the powers of the legislature under Article 239AA[4]. The involvement of Delhi Government is only limited to the governance of the municipality as contended by the Respondents. They contended that LG could overrule the CoMs in certain specific subject matters, such as public order, law enforcement and land disputes.

Delhi has a legislative assembly but remains to be a Union Territory and is under the ambit of the rule by President of India. It would be against democracy if the two bodies have the same powers. The Respondents also do not consider the Article 239AA[5] as a valid provision of the Constitution of India. They contend that Article 239[6] of Part VIII of the Constitution of India is a significant feature as it defines framework of the governance of the Union Territories and also specify that the President shall oversee the administration of these territories through administrators appointed by him.

These administrators shall represent the President. This system shall be under the direct supervision of the Central Government which grants the President the authority to appoint administrators and Governors of the States adjacent to these Union Territories as the administrator who shall be operating independently of the state government and thus, this Article must be connected with Article 239AA[7].

The Respondents stated that the interpretation of Article 239AA[8] and the GNCTD Act, 1991[9] must be done in such a manner so that it accurately reflects the intended meaning of the Balakrishnan Report. The right to exercise executive powers by the CoMs is not mentioned. It was also submitted that the wordings LG and his Ministers had no relation to CoMs and LG that the LG is supposed to oversee the functioning. The executive powers vested with the President of governing a state when the constitutional machinery of that particular state breaks down is as per Article 356[10] of the Constitution of India. But it does not apply to Union Territories. Article 239AA[11] provides for the suspension of powers if the President deems it essential.

The Hon'ble Apex Court in its judgment stated that when there arises conflict between the legislation which is passed by the State Assembly and the Parliament's legislation, the Parliament has an overriding power. It also mentioned that if the legislation framed by the State Assembly is kept aside for recommendations by the President and the same has been duly ratified by the President; then, the legislation shall only be effective in the territory of NCT Delhi. But the enforcement of the law in the region of NCT Delhi shall not bar the Parliament from enforcing any other law concerning identical subject matter.

The Hon'ble Court equated Constitutional morality to Constitutional standards and conscience. They mentioned that any sort of behaviour which endeavours to substantiates itself must have the capability to be in parlance with the letter and spirit of the Constitution and Constitutional motivation. The spirit of constitutionality repudiates the notion of power being dominated by a handful. The pillars of the government should function in accordance with the idea and spirit of the Constitution. As the supreme legal framework, the Constitution has established the roots of government by incorporating an obligatory authority and a mechanism for keeping a check as its ground foundation. Constitutional governance fosters trust, which officials must uphold when discharging their duties.

The Hon'ble Court observed that LG of Delhi is bound by the counsel of the CoMs and thus, the writ petition upholding the judgment was dismissed. It was also held that NCT Delhi could not be given the status of a State under the current constitutional system and that 'absolutism' and 'anarchy' was not allowed. But, only some required independence was granted to Delhi. According to CJI Misra, the CoMs and the LG must collaborate with prudence and sound judgment, adopting a constructive and progressive approach.

It was stated that the laws should be interpreted based on the needs of the hour. LG should not function by rote and should be utilised on constitutionally relevant topics. The opinions of the elected representatives of the Delhi Legislative Assembly must be honoured. The CoMs serves the public and depicts both responsibilities and democratic pursuits and aspirations. In case, there arises any conflict between the LG and the CoMs then it must be addressed through a proper discourse. Article 239AA[12] has a distinct connotation as uttered by then Hon'ble Court as it differentiates between the powers to legislate given to the State and the Union Territories.

The Parliament had a comprehensive understanding of the functioning of the Union Territory, along with the scope of powers and controls that could be conferred upon it through a constitutional amendment when Article 239AA[13] was incorporated. The State Assembly of NCT Delhi does not have authority over Entry 41 of List II. The scope of Article 239AA (4)[14] covers subjects over which the State Assembly is empowered to legislate. The Government of NCT Delhi exercises its executive powers either under statutes enacted by Parliament or through powers specifically assigned to it.

The public authorities and the system of keeping a check over the authorities are the fundamental principles of governance. So to prevent the conflicts, it is essential to maintain a cooperative and interdependent relationship between the Union and state governments, fostering a framework of cooperative federalism. The role of the LG in the territory in NCT Delhi may differ from that of the state governor, as the LG retains administrative control. The Parliament has legislative authority to enact on all entries pertaining to the two Lists (II and III) concerning the NCT Delhi. The State Assembly of Delhi is empowered to enact laws on subjects within the Concurrent and State Lists, excluding police, land, and public order.

Clause (2)[15] of Article 239AA pertains to the election for the Legislative Assembly. This provision emphasises the importance of participatory democracy where representative who are directly elected are considered to be the voice of the people. The role of Legislature within a Union Territory must be acknowledged. Sub-clause 3[16] and 4[17] of the Article addresses the issues of repugnancy and the CoMs, respectively. The former establishes that if a conflict between laws of the Parliament and the State Legislature, the Parliament's law takes precedence.

This highlights the framework of distribution of power within a Union Territory. The latter discusses the role of CoMs in providing counsel, as well as the mechanism for resolving differences of opinion. The inference of this provision seeks to determine which authority prevails in a Union Territory when such differences arise. Additionally, Section 41[18] of the Government of NCT Delhi Act provides more clarification on the matters that are out of the domain of the CoMs and his aid and advice. This provision addresses concerns regarding the extent and limitations of ministerial counsel, ensuring clarity in governance.

The Court accentuated that the LG must maintain impartiality towards the CoMs by acting as a mediator. It also underscored that it is highly important to respect the authorities established by the constitution and its governance which serves for the will of the public. Neither the State government nor the LG must seek dominance, as both are entrusted with fulfilling their constitutional responsibilities.

The Bench relied on the case of the Advance Insurance Limited v. Gurudasmal[19] which established that the definition of State as defined under the General Clauses Act and as amended by the President through Article 372A[20] must be applicable when the Constitution and Acts are being interpreted as specified in Article 367[21] unless the context requires a different interpretation.

The interpretation was guide by a specific objective. According to Section 3(58) of the General Clauses Act, 1897[22], a Union Territory is included within the definition of 'State' as provided in the First Schedule. However, the definition of State does not cover the scope of Article 246[23]. As a result, the legislative assembly of NCT Delhi lacks the authority to make laws on matters where the term State is interpreted in a different context. The phrase "insofar as such matter applies to Union Territories" broadens the assembly's jurisdiction to all entries that include the term State.

Conclusion
The judgment emphasises the core principle of democracy, asserting that power should rest with elected representatives as it upholds citizen's freedom to choose their leaders, even within a Union Territory. The ruling interprets Article 239AA in a way which favours representative democracy, which benefits the people but poses challenges in the context of Union Territory, where the Centre has a special responsibility to intervene.

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