Let me start running my pen by first and foremost pointing out that the Supreme Court on November 2, 2017 commenced a crucial hearing to determine whether the elected government or the Lieutenant Governor enjoys supremacy in administration of the Union Territory of Delhi, observing that the constitutional scheme was prima facie tilted in favour of the LG.
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The Supreme Court said that the Constitution “prima facie” gives primacy to the Lieutenant Governor in the affairs of Delhi, but observed that the LG cannot sit on files sent for approval by an elected government. No doubt, if an LG just sits on the file, he is doing nothing but making an open mockery of the elected mandate which the Chief Minister secured in the elections and this can never be good for the health of a vibrant democratic country like India!
For my esteemed readers exclusive indulgence, let me also inform them that the Bench also made it clear that in case of differences with the ministers, he should refer the matter to the President and must spell out the reasons. He cannot just straightaway refuse to give reasons in any matter. It must be revealed here that these observations have given a glimmer of hope to the Arvind Kejriwal Government which had approached the Apex Court to determine the powers of the LG under Article 239AA(4) according to which in case of “difference of opinion” between the LG and the elected Government, the former has power to refer the matter to President, or in the event of urgency pass necessary orders for immediate action.
Mohalla clinics: AAP MLAs staged sit-in at LG’s office on August 30. AAP MLAs alleged that LG was sitting on the file for months. Soon after on September 4, LG gave clearance.
Teachers recruitment: Delhi government alleged files were not shown to Education Minister Manish Sisodia. LG Blamed his department for not following procedure.
Slum rehabilitation: Cleared by Cabinet on June 20. File with LG after being sent on July 10.
App-based premium buses: LG struck down proposal. Alleged that it was intended to benefit a certain company.
Mohalla sabhas: Cabinet cleared project in June. Files await LG’s nod. Rs 350 crore funds unutilized.
Regularisation of guest teachers. Manish Sisodia who is Deputy Chief Minister and Education Minister has written to the LG Anil Baijal reminding him about the pending Bill on regularization of guest teachers that was passed by the Delhi State Assembly in early October. Sisodia alleged that he had sought an appointment with LG along with guest teachers but he refused to meet all and only agreed to meet Sisodia alone.
Increase of stamp duty and circle rate of agricultural land.
Setting up of inquiry commission to probe CNG fitness scam, irregularities in Delhi District Cricket Association (DDCA).
Truth be told, Gopal Subramanium also made it a point to ask categorically that, “Why is there an elected Government in the first place? This matter is not about supremacy, but to make a democratic experiment provided by Parliament a success. It can’t be that the LG has to disagree with you on anything and everything and block governance.” Kejriwal also was at pains to point out that, “My government is so powerless that I can’t even get my peon appointed.” He has also complained to the Supreme Court that the Centre through the Lieutenant Governor who acted as a “super governor”, had completely paralysed the elected AAP government by stalling its every welfare scheme.
As things stand, Gopal Subramanium said that, “The LG has been exercising powers in such a manner to completely block Delhi government and negate the intent and object of Article 239AA which gave a democratically elected government to Delhi.” He also rightly pointed out that, “The purpose of Article 239AA was to provide some kind of voice to the people. We are not contesting parliamentary supremacy. But there must be an elbow room for the Legislative Assembly…Everything we do does not require the concurrence of the LG.”
He also submitted that, “The Delhi High Court actually said this LG has special powers greater than the President, greater than the Governors of States.” It cannot be lost on us that since the formation of the AAP government in 2015 in Delhi, it has been locked in a fierce turf war with the LG over whose writ should run in Delhi. This is what is most unfortunate!
Truly speaking, when the Bench said a proviso in Article 239AA prima facie appeared to suggest that the LG had primacy in governance of Delhi, Gopal Subramanium said that, “Is it the intent of the constitutional provision to make civil servants openly defy the elected government? Is it the mandate of the constitutional provision that the LG must stall every scheme of the Delhi government – extending the functioning of mohalla clinics for one year, regularising posts of teachers in municipal schools, and filling up of nearly one lakh sanctioned posts at various levels through a transparent process? Now, the ministers as departmental heads have to fall at the feet of the bureaucrats to implement public welfare schemes.”
It would be pertinent to mention here that the Chief Justice of India (CJI) Dipak Misra orally observed that, “The Lieutenant Governor (LG) cannot differ with each and any administrative decision of the Delhi government. Though having every authority to differ, his disagreement with the Delhi government should not be trivial or contrived, but substantive. Aid and advice (of the Delhi government) should be accepted and respected unless there is an abuse of authority.”
It would be equally pertinent to mention here that the CJI Dipak Misra also went on to add that, “The intervention [of the LG] does not mean he will have confrontation. It should be fact and issue-oriented on objective parameters. The LG should conduct his constitutional duties, keeping in mind factors like he is an august head, keeping in mind the special status of Delhi as the National Capital, what was intended by Parliament in the 69th Constitutional Amendment, not act in a way to defeat the intent of the constitutional provision of Article 239AA of harmonious governance and, most importantly, citizenry’s trust.” Justice DY Chandrachud observed that, “He [LG] cannot supplant the administration”.
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.