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SC ruling on Delhi govt

Kashmir Times. Dated: 7/7/2018 12:14:25 AM

The Apex Court's clarification on elected government's powers restores faith in supremacy of democratic institutions and federalism

The Supreme Court early this week has restored and reaffirmed the primary role played by the 'representative government' in the National Capital territory by ruling that the Lieutenant Governor of Delhi has no independent decision making power. The ruling also goes on to say that the Lt Governor has to mainly act on the aid and advice of the Council of Ministers, who are elected representatives of the people. This ruling is also in line with other states of the country, wherein the Governors appointed by the centre cannot undermine the powers of an elected government and have to act on the aid and advice of the Council of Ministers. This is the strength of the Constitution of India, which reaffirms the supremacy of the elected governments in a democratic and federal structure. It has to be seen that Delhi was created a Union Territory as a separate category with an elected Legislative Assembly with powers to enact laws in all matters falling under the State and Concurrent lists with exception of public order, police and land. Such a special category gave Delhi a status higher than other Union Territories in the country. The demand for granting full statehood to Delhi has been around for many years, but the constitutional tussle between Aam Aadmi Party government and the BJP-ruled centre became acrimonious during the past three years. It is surprising that apart from AAP, the Bhartiya Janata Party has also been voicing its demand for full statehood to Delhi, when they were in the opposition. While in opposition, the BJP on most occasions cited the federal structure of the Constitution for full statehood to Delhi. After coming to power at the centre, the BJP took almost a different position on statehood issue and wanted to control the three subjects and resorting to arm-twisting of the AAP government through the Lt Governor and rejected all proposals which had the sanction and enactment of the Legislative Assembly. For this reason, the battle between the AAP government and the centre turned bitter and amounted to denial of basic democratic rights of the people, who elected a government of their own three and a half years back. In fact, on many occasions, both the Congress and BJP worked overtime to create roadblocks for the AAP government in Delhi despite the fact that both the parties suffered humiliating defeat in the elections in 2015.
While the acrimony has been going on, the situation was in favour of the central government because of Lt Governor's claim that he had the power to refer any matter to the President. This proviso that allowed him to make such reference was used to block major political decisions of the AAP government. At one point of time, even Delhi High Court agreed with this provision two years ago giving an impression that administrative decisions needed Lt Governor's concurrence. From thereon, the AAP government agitated the matter before the SC with no other alternative available to it. In its ruling that essentially reaffirms the constitutional position, the SC has said that the Lt Governor has to ordinarily act on the aid and advice of the Council of Ministers. At the same time, it has retained the Lt Governor's powers to refer matters to the President for a decision. But the power to refer 'any matter' to the President no longer means 'every matter'. Moreover, there is no requirement of the Lt Governor's concurrence for any proposal. The 'reference' clause may give rise to conflict even now. However, the SC has significantly limited its potential for mischief. It has not given an exhaustive list of matters that can be referred, but Justice D Y Chandrachud, in a separate but concurring opinion, has indicated that it could 'encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union'. Overall, the SC judgment is an appeal to a sense of constitutional morality and constitutional trust among high functionaries. It has also ruled out AAP's demand for full statehood, and the critical powers - over police, land and public order - still remain vested with the Centre. The basic message is that an elected government cannot be undermined by an unelected administrator appointed by the Centre. The larger message from the SC is clear that the Union and its units have to collaborate among themselves for a cooperative and interdependent federal structure in the interest of democracy and the people.