A five-judge Constitution bench of the Supreme Court led by Chief Justice of India Dipak Misra made it clear on Wednesday that the lieutenant governor’s agreement is not necessary for every decision the Delhi government makes. The exceptions are the three subjects of land, police and public order, over which the Delhi government does not have any jurisdiction in the national capital territory.

However, this does not mean that the lieutenant governor will not be able to stall the government’s decisions. Though the court has made it clear that the lieutenant governor cannot exercise the power to refer the state government’s decisions to the President in a mechanical manner, it did not make an exhaustive list of matters that could be referred to the President. This means that the lieutenant governor’s power to make references to the President remains discretionary. This could lead to litigation if the Delhi government and the lieutenant governor differ on a subject.

The Supreme Court was hearing an appeal that the Aam Aadmi Party-led Delhi state government filed in 2016 against a Delhi High Court judgement declaring the lieutenant governor the sole administrator of the region. The Centre issued a notification on May 21, 2015, giving what the Aam Aadmi Party claimed were “unprecedented powers” to the lieutenant governor on matters such as public order, police and services.

The fundamental conflict between the Delhi government and the lieutenant government has its roots in Article 239 AA of the Constitution, which gives Delhi the special character of a Union territory with a legislative assembly that has a lieutenant governor as the administrative head. Three subjects – land, police and public order – are beyond the jurisdiction of the Delhi government. But its legislature can make laws on all other subjects.

Over the past few months, Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor Anil Baijal have been locked in a heated turf war. As a consequence of these disagreements, Baijal has been stalling decisions made by the government, Kejriwal alleged. In June, Kejriwal, along with three cabinet colleagues, held a sit-in protest at Baijal’s office alleging that Indian Administrative Service officers working for Delhi had gone on an unofficial strike.

Lieutenant governor’s powers

Uniquely to Delhi, all areas of governance are also matters on the concurrent list. This means the national Parliament also has the power to legislate on these subjects and its writ has precedence over that of the legislative assembly.

Under 239 AA, sub-section 4, the Constitution says the council of ministers headed by the chief minister will “aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws”. Matters that require the lieutenant governor’s discretion are exempted from this rule.

The same provision says that when there is a difference of opinion between the council of ministers and the lieutenant government on “any matter”, the matter can be referred to the President, whose decision will be binding. Pending the President’s decision, the provision says, “it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.” This means that the lieutenant govenor could also stall decisions of the government by simply sitting on them without taking a call. This is exactly what has been happening in Delhi over the past few months.

At the heart of the problem is the discretionary nature of the reference to the President the lieutenant governor makes under 239 AA (4).

The Supreme Court on Wednesday made strong comments about how the lieutenant governor has used this provision. Chief Justice Misra, writing the majority opinion for Justice AK Sikri and Justice AM Khanwilkar, said that the words “any matter” does not mean “every matter”. The judgement said:

“It has to be clearly understood that though ‘any’ may not mean ‘every’, yet how it should be understood is extremely significant. Let us elaborate.  The power given to the Lieutenant Governor under the proviso to Article 239AA(4) contains the rule of exception and should not be treated as a general norm. The Lieutenant   Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President  who are  bound by   the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President.”  

In his separate opinion, Justice DY Chandrachud reiterated this position but in a more assertive language, where he indicated what type of matters could be referred to the President. After pointing to the process of discussion with the council of ministers to sort out the differences, he said:

“The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital Territory. Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union.”

Justice Ashok Bhushan also concurred with this position in his opinion. Bhushan also said that the reference should be made within a reasonable time of having seen the cabinet’s proposal. When read together, these opinions make it clear that the lieutenant governor could use the power of reference only in matters of great importance and where the difference is substantive. In all other cases, the decision of the council of ministers is final and binding on the lieutenant governor.

However, the court has stayed away from making an exhaustive list of the matters that could be referred to the President. This was on expected lines as the court cannot anticipate every situation that could arise in the course of policy making.

Discretionary powers

The court has clearly done all it could to ensure that governance is not paralysed in Delhi due to a confrontation between the lieutenant governor and the chief minister. It emphasised that dialogue is an important element of the constitutional relationship between the government and the lieutenant govenor. However, despite the exhaustive judgement, 239 AA (4) still stands and with it the discretionary element in powers of the lieutenant governor.

What this means is that despite the strong fencing of the powers by the Supreme Court, nothing stops a lieutenant governor from invoking this provision of reference for any matter. The judgement could lead to more litigation as the government could challenge every reference made by the lieutenant governor to the President, claiming that it violates the Supreme Court directives.

There are other questions that arise from this position. Once the reference is made and the President is seized of the matter, could the courts intervene and stay the reference? Given the special position that the office of the President holds in the Constitution, this could become another matter of contention.

At the end, it all boils down to the character of the person holding the office of the lieutenant governor. When the parties ruling the Centre and Delhi are in opposing camps, as is the case currently, arbitariness has marked the decision of the lieutenant governor. While Wednesday’s judgement is strong check on the misuse of the office, it will not completely deter it.