The Supreme Court of India in its recent verdict has held that Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the elected Government of Delhi. While holding so, the Court has observed that in a democracy, real power must vest in the elected representatives and Lt. Governor cannot interfere in every decision of the Delhi Government. Further, noting that there is no need for the Delhi Government to seek the permission of Lt. Governor in all matters.
Delhi, although a Union Territory, it having a special constitutional status through 69th Amendment Act of the Constitution. The Supreme Court, in New Delhi Municipal Corporation v. State of Punjab, stated that though Delhi has a unique constitutional status with an elected legislature and council of ministers, there are however few restrictions on the law-making power of the Delhi Legislature. As per the article 239(A)(A) of the Constitution, the elected government of Delhi has the power to make laws on any of the subjects in the State and Concurrent List except land, public order and police. This limited restriction on the powers of the government makes sense since Delhi is the National Capital and the Union Government has the offices and residences of all its Ministers and Senior Officials, including foreign dignitaries, in Delhi. Hence, it is Union Government's responsibility to ensure law and order and manage effective allocation of land. Delhi can be called a Quasi-State with certain restrictions on law making powers of its government.
The Balakrishnan Committee Report, basis on which the said 69th Constitutional Amendment was made by inserting Articles 239(A)(A) and 239 (A)(B), recommended that the Administrator of Delhi shall act on the aid and advice on the Council of Ministers in respect to which the Legislative Assembly has powers to enact. Going by the recommendations of the Committee, it can be reasonably inferred that the intention of the committee was to have an elected government in Delhi, which will have the powers to make decisions on any of the subjects in the State and Concurrent List except those specifically excluded from the powers of the Government. Therefore, the Lt. Governor shall be bound by the aid and advise of council of ministers of Delhi except in the case of matters relating to public order, police and land.
The Supreme Court, in its judgment in Ram Jawaya Kapur v. State of Punjab, has held that Executive Power of the State is exclusive with respect to any of the entries mentioned in List II (State List) of the Seventh Schedule and List III (Concurrent List), subject to any laws passed by the Parliament on it and the President of India or the Governor of the State shall work only on the aid and advice of the Council of Ministers. The same was reiterated by the Supreme Court in Shamsher Singh v. State of Punjab, where the court said that the Governor has to act on the aid and advise of the council of ministers of the state except in the cases where the Statute explicitly requires the Governor to exercise his powers in discretion.
As pointed out by the court, in a democratic system like ours, which is based on the Westminster Model of the United Kingdom, the elected government should be able to exercise all the executive powers. The Supreme Court thus clearly ordered that the elected government of the State shall have the decision-making powers with respect to functioning of the state and the same applies to Delhi as it has been specifically conferred that power by the Constitution.
However, in the recent past, the Lt. Governor of Delhi was acting critically in day-to-day affairs of the Delhi Government and stalling the functioning of the elected government, which was quite alarming as it was abrogating the decision-making powers of the government. This issue posed a threat to the federal spirit of our Constitution. In a democracy, the real power should lie with the elected representatives of the people. The implications of good or bad decision making of the government are to be faced by people, who in-turn express their views regarding such decisions through their elected representatives, making the elected government directly responsible to the people. Each member of the cabinet is both individually as well as collectively (through the council of ministers) responsible to the people. The people at large is having the power to decide in whom to vest such a decision-making authority. Democracy is enshrined as a core and fundamental value of the Indian Constitution and by encroaching upon the democratic right of the people by administering the government through a nominated representative of the Union actually destroys the heart and spirit of the Constitution. Article 239 (A)(A) of the Constitution confers upon the people of Delhi, the right to elect their own representatives to manage and run the affairs of the State.
Similarly, the concept of federalism is sacrosanct to the Indian Constitution. Part XI of the Constitution, divides the executive, legislative and administrative powers between the Union and the State. Justice Ahmedi, in S.R Bommai v. Union of India, had opined that the essence of federalism is demarcation and distribution of powers between the Union and States. The fundamental feature of federalism is that the legislature in each state is supreme within that state. Therefore, in order to preserve the federal spirit of the Indian Constitution it is imperative to not interfere with the functioning of state governments by the Governors or the Lt Governors who are only the titular head of the states.
The order of the Supreme Court can be said to have preserved the federal spirit of the Constitution and preserved the sacrosanct value of democracy in the country by vesting the law-making powers in the hands of the elected representatives.
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