Context

• The Lt. Governor’s acts have not been in consonance with the Supreme Court’s 2018 ruling in the prosecutor’s appointment in the Delhi riot case.

Background

• On 4th July 2018, the five-judge Bench unanimously held that the Chief Minister is the executive head of the NCT.
• The tussle between  the Chief Minister of Delhi, and Lt. Governor of Delhi eventually led to a legal controversy on the status of the NCT (National Capital Territory). The issue revolves around the administrative powers of the Lt. Governor of Delhi in light of the special status of Delhi as a Union Territory.
• The issues raised in this case was previously heard by the Delhi High Court in 2015 because of a series of run-ins between Chief Minister Arvind Kejriwal and Ret’d Lt. Governor Najeeb Jung over matters such as the appointment of a Chief Secretary without consulting the Lt. Governor and the Chief Minister instituting corruption enquiries without the Lt. Governor’s concurrence.
• The confusion arose due to the special nature of Delhi which is a Union Territory with the features of a State, such as having an elected legislature. The 69th Amendment to the Constitution in 1992 added Article 239AA, which mandated an elected Assembly for Delhi. The special provisions added through the 69th Amendment created confusion with respect to the jurisdiction of the Delhi Government vis-a-vis the Centre.
• The Delhi High Court in its judgement delivered on 4th August 2016 held that Delhi continues to be a Union Territory despite Article 239AA.  It further held that the special provisions incorporated for Delhi do not overrule the effect of Article 239. Article 239 empowers the Lieutenant Governor to act independently of his Council of Ministers. As a result, all enquiries which were initiated by the Delhi Government without the concurrence of Lt. Governors were declared illegal.
• The concurrence of the Lt Governor became mandatory for all administrative decisions of the Council of Ministers of Delhi.
• The Delhi Government challenged this decision of the Delhi High Court before the Supreme Court. In February 2017, the two-judge Bench hearing the matter, referred it to a five-judge Constitution Bench.
• On 4th July 2018, the Constitution Bench ruled that the Lt. Governor is bound by the aid and advice of the Council of Ministers.

About 2018 Supreme Court ruling

• The Supreme Court’s Constitution Bench delivered one such landmark judgement in the Government of NCT of Delhi versus Union of India,2018 to resolve the power struggle in Delhi between the Lieutenant Governor (L.G.) and the elected Council of Ministers led by the Chief Minister. The bench said that
• The executive head of the Delhi government was its Chief Minister, not the Lieutenant Governor and L.G. had no independent decision-making powers.
•  The L.G. was bound by the aid and advice of the Council of Ministers on all matters in which the Delhi Assembly had the power to make laws. 
• The L.G. could reserve a matter for consideration by the President only in exceptional situations where there was a genuine disagreement with the Council of Ministers. 
• The L.G. can do so only as a last resort and shall be bound by the President’s advice, the bench held. 
• The Council of Ministers did not require the L.G. ‘s concurrence to implement its decisions even though it had the responsibility to keep him apprised of its every decision.

Significance of the judgement

• Analyses the contentious issues which hobbled the State government and attempts to resolve them. 
• Very lofty principles concerning constitutional morality, co-operative federalism, constitutional conscience, pragmatic federalism, etc., have been enunciated in this judgement.
• It reminds the Lt. Governor what his real functions are. 
• It lays down the parameters to enable the harmonious functioning of the government and the Lt. Governor.
• The judgement clarified and settled many contentious issues such as the powers of the Lt. Governor vis-à-vis the elected government, his discretionary powers, the extent of the executive powers of the State government, etc. 

What is the issue with the judgement?

• It did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government. 

Consequences

• If a Lt. Governor, for example, wants to frustrate the efforts of the government, he can declare that there is a difference of opinion on any issue decided by the elected government and refer it to the President which in reality means the Union Home Ministry. 
• The Lt. Governor being its representative, it is easier for him to secure a decision in his favour. The State government will be totally helpless in such a situation.

Delhi riot cases

• The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point. 
• As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government. 
• When the government decided to appoint them, the Lt. Governor referred it under proviso to Article 239AA (4) to the President stating that there is a difference of opinion between him and the government over this matter. 
• In the meantime the Lt. Governor appointed all the prosecutors whose names were submitted by the Delhi Police and thus the State government’s list was rejected.

Criticism

• This clearly points to the fault lines which still exist in the power equations in Delhi’s administrative structure. 
• According to the Supreme Court’s 2018 judgement “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’. 
• Union Government is not empowered to exercise executive authority on a matter which comes within the exclusive jurisdiction of the State government like the appointment of Prosecutors.The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President. But this proviso cannot totally override the executive decisions of the State government.
• The Lt. Governor referring to the President normal administrative matters would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality. 
• Reference of the appointment of Prosecutors by the Lt. Governor (which is a routine administrative matter) to the President seems to be a negation of these principles.

Way forward

•  Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.
• The Lt. Governor and the Council of Ministers to use in full the mechanism provided in the Government of NCT of Delhi Act and the Transaction of Business Rules to thrash out differences. 
• The President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.