The tussle for power between NCT Delhi and Lieutenant Governor: Who can make executive decisions?

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In the matter of Government of NCT Delhi vs. Union of India(2018), the issue before the Supreme Court was the jurisdictional conflict between the government of NCT Delhi and the Union Government and its representative, the Lieutenant Governor. The judgment authored by Mr. Justice Ashok Bhushan runs into more than 1,000 pages enunciated very lofty principles concerning constitutional morality, co-operative federalism, constitutional and conscience, pragmatic federalism, etc. Most importantly, it said, ” The exercise of establishing a democratic form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has the power to legislate for the NCT of Delhi.

Lieutenant Governor to act in ‘aid and advice of the council of Ministers’

The judgment tells the state government that Delhi is a special category Union Territory and lays down parameters to enable the harmonious functioning of the government and the Lt. Governor. The judgment settles the power of the state government and Lt. Governor but however it did not specify as to when the Lt. Governor can refer a decision of the council of ministers when there arises difference of opinion under Article 239AA (4) (proviso). However, the decision restricts the power of the Government of NCT Delhi to legislate in respect of ‘Land, ‘Public Order’, and the ‘Police‘. 

Which are ‘any matter’ to be referred to the president

On this issue, the Supreme Court said, “The words ‘any matter’ employed in the proviso to Article 239AA(4) cannot be inferred to mean ‘every matter’. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor. Keeping in mind the standards of constitutional trust and morality, the principles of collaborative federalism and the concept of Constitutional balance…”

Who shall legislate on matters relating to the executive?

The Supreme Court said, “Article 239AA (3)(a) reserves the Parliament’s legislative power on all matters in the State List and Concurrent List but Clause(4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate.”

This interprets the Government of Delhi has exclusive power and jurisdiction in matters relating to the executive. Though the power is not absolute as Lt. Governor can overturn the decisions by referring the matter to the President by terming it as a difference of opinion under Clause (4), though not so permissible in every case. The powers are already divided by the judgment between both the functionaries. Strict adherence to the constitutional principles of collaborative federalism, constitutional balance and the concept of constitutional governace is required to enable the harmonious functioning of the government and the Lt. Governor, as observed by the Supreme Court.

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