SC verdict on Delhi CM vs LG tussle to set tone for rest of India

Implications for Constitutional federal structure of Union of India


January 26, 2023

/ By / New Delhi

SC verdict on Delhi CM vs LG tussle to set tone for rest of India

Supreme Court's verdict on Delhi LG-CM conflict will have ramifications beyond Delhi

Though the five-judge Constitution bench of the Supreme Court led by Chief Justice D Y Chandrachud reserved verdict in the prolonged battle of power between Lieutenant Governor (LG) and Chief Minister of Delhi, the case is being followed closely by various state governments and governors as it could have implications for many of them where the scuffle for power has intensified between elected state governments and Governors, the nominated representatives of the Centre. The increasing conflicts have led to a question mark on the federal structure of India as guaranteed by the Constitution.

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Last week, a five-judge Constitution bench of the Supreme Court led by Chief Justice D Y Chandrachud reserved its verdict on the long-running battle between the Centre and Delhi government over control of services in the national capital. The Supreme Court reserved its verdict after hearing Solicitor General Tushar Mehta representing the Centre and senior advocate A M Singhvi who represented the Delhi government, for hearings that lasted over four days.

The verdict is expected to clear the cloud over separation of power between the Lieutenant Governor (LG) and the Delhi Chief Minister, a dispute that has resurfaced time and again. It came into the spotlight again recently when the current Delhi Chief Minister Arvind Kejriwal took to the streets to protest against the Lieutenant Governor (LG) Vinai Kumar Saxena, accusing him of issuing orders on “practically everything” and bypassing the elected government.

The recent flashpoint between Delhi Chief Minister and Lieutenant Governor (LG) was triggered ahead of the January 6 election of Mayor and Deputy Mayor of the Municipal Corporation of Delhi (MCD), which intensified when Saxena declined to give approval to the proposed training of primary teaching in-charges and educators of the State Council of Educational Research and Training (SCERT) in Finland and asked the department to provide a cost-benefit analysis in tangible terms.

The current case at the apex court follows a split verdict in 2019 in which a two-judge bench of Justices A K Sikri and Ashok Bhushan, recommended to then Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital.

The Supreme Court took up the case following an appeal by Aam Admi Party government against the decision of Delhi High Court which held the LG as the sole ‘government’ in place in Delhi.

Polemical Constitutional provisions 

For decades, Delhi has been the battleground of the distribution of power between the elected government of Delhi and the Centre’s appointed Lieutenant-Governor, which is primarily attributed to the absence of statehood. According to the 69th Constitutional Amendment, Delhi is a Union Territory with special character and is governed by the elected state government and the Centre through the LG. Matters related to land, police, law and order, and services come under the LG.

The 69th Amendment to the Constitution in 1992 added Articles 239AA & 239AB, which mandated an elected assembly for Delhi, adding to ambiguity with respect to the jurisdiction of the Delhi Government vis-a-vis the Centre. The provisions of Article 239AA made Delhi as “National Capital Territory” while the Schedule 1 continues to provide it the status of Union Territory.

Article 239AA notes that LG has to either act on the aid and advice of the Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. However, it also empowers the LG to refer a difference of opinion on “any matter” with the Council of Ministers to the President. The power struggle results from this dual control between LG and the elected government.

The conundrum became more intense when the central government introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, which gives primacy to the Lieutenant-Governor over the elected government in the city by amending several sections, including sections 21, 24, 33, and 44 of the 1991 Act. The amendment states that ‘‘government’’ in the National Capital Territory of Delhi means the Lieutenant-Governor of Delhi. It also gives the LG discretionary powers in areas where the Legislative Assembly of Delhi has legislative authority, putting the core principles of federalism under scrutiny.

“We on behalf of the government of Delhi argued that the federalism being the basic structure of Indian Constitution and as framed in the Article 239AA, inserted by 69th Amendment, provides that the elected government/legislature have power to make laws on all subjects in the state list except public order, land and police and it nowhere excludes the power of elected government in relation to transfer and posting of administrative officers. We further argued that, if the Centre can legislate on each subject of State list then at first place there were not have been a requirement to provide legislative assembly and executive at the first place in the UT of Delhi and further there will not have been specific exclusion of three subjects of state list only in Article 239 AA. Hence Delhi is on a higher footing. Further, we countered that the democracies across world follow federalism in relation to administrative control of states and no exception in relation to capital states is being followed across the world,” Chirag M Shroff and Shailendra Pratap Singh, who were among the lawyers representing Delhi Government in the case at Supreme Court, tell Media India Group.

Different judges, varied perspectives

As the dispute between the Centre and the elected government has been going on for decades, different judges in different courts have viewed the issue differently.

In 2016, Chief Justice of Delhi High Court G Rohini hearing the case had ruled that the LG was the administrative head of the National Capital Territory of Delhi (NCTD) and hence not required to act on the advice of the Council of Ministers, even in areas that were exclusive domains of the elected government.

When the Delhi government moved the top court against Justice Rohini’s order, on two occasions the Supreme Court held that the government was not under obligation to seek the concurrence of the LG on its decisions.  ‘‘And, any differences between them should be resolved keeping in view the constitutional primacy of representative government and cooperative federalism,” the top court had held.

However, in 2019 a two-judge bench of the Supreme Court delivered a spilt verdict on the matter. While Justice Bhushan held that the Delhi government had no power over administrative services at all, Justice Sikri was of the view that “transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly”, but “for other levels, including DANICS (Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be routed through the Chief Minister to LG”.

Centre vs State saga

The conundrum in the case is important not just for the limited purpose of resolving the dispute in Delhi, but has serious implications for the rest of the country, especially in defining the fuzzy separation of powers between the States and the Centre and the frequent incursions made by the Centre in areas that are meant to be under jurisdiction of the States.

Although the Seventh Schedule to the Constitution of India, which contains three lists—the Union List, the State List, and the Concurrent List—defines and specifies the allocation of powers and functions between the Union and States, the kerfuffle over the division of power between the Centre and States has been seen across the country for decades, almost since the independence.

The issue had its genesis in 1959, when the government headed by E M S Namboodiripad in Kerala was sacked by the Centre by invoking Article 356. In another case, in 1980, the then Prime Minister Indira Gandhi had dissolved assemblies of as many as nine states right after taking charge in 1980.

There have been similar incidents since then. Sometimes the judiciary has stepped in to counter the moves by the Centre, most notably in Uttarakhand and Arunachal Pradesh in 2016, holding the dismissal by the Narendra Modi government as illegal.

Since 2014, the relationship between the Centre and the States, notably States ruled by opposition parties, has become more fraught, with frequent clashes as States accuse the Centre of transgressing into areas that are the exclusive purview of the States as per the separation of powers provided in the Constitution. There have been frequent disputes between the Centre and States like West Bengal, Kerala and Tamil Nadu, which have also seen a grave deterioration in the relationship between the Governor and Chief Minister.

Most recently, in Tamil Nadu, earlier this month, Chief Minister MK Stalin moved a resolution stating that only the customary speech by the government would go on record for the first day of the House’s winter session, following which the Tamil Nadu Governor R N Ravi, who had digressed sharply from the text in his speech, walked out of the State Assembly.

The power tussle between the elected chief minister and the center-appointed governor has been intense in Kerala too. In the Communist Party of India (Marxist) ruled Kerala, government led by Pinarayi Vijayan pushed a resolution through the assembly replacing Governor Arif Mohammed Khan as Chancellor of state universities. The action came amid the government’s ongoing dispute with Khan over the operation of universities in the state, including the nomination of vice chancellors.

In West Bengal, too, the Trinamool Congress-ruled West Bengal, Mamata Banerjee’s government had an undeclared war against the then state governor and incumbent vice president of India, Jagdeep Dhankhar, by accusing him of creating many obstacles for the state government to function properly.

Legal experts predict that whenever the Supreme Court verdict is declared and whichever way the case goes, it is hardly likely to be the end of the dispute and sooner than later the matter is set to return to the courts.