A five-judge Supreme Court Bench’s order on the tussle between the Aam Aadmi Party Government in Delhi and the Lt Governor has come as a sort of an anti-climax. The belief that it would ‘resolve’ the dispute over the powers of the elected regime and the Lt Governor is misplaced. The wide scope for interpretation of the order has led everyone — from the AAP to the Bharatiya Janata Party to the Congress — to claim vindication. Chief Minister Arvind Kejriwal has termed the judgement as a “big victory” for democracy; the BJP said the order had flayed the AAP’s anarchism; and the Congress noted that Kejriwal could not the pass the buck now to the Lt Governor for his governance failures.
That the last word has not yet been said became apparent within hours of the court verdict. The AAP regime issued an order withdrawing all powers of transfer and posting of bureaucrats, including IAS officers, from the Lt Governor, the Chief Secretary and heads of departments. The senior bureaucracy hit back by returning the order given by Deputy Chief Minister Manish Sisodia, noting it was “legally incorrect”. Even before properly studying the judgement, the AAP Government has decided to go for the jugular in its characteristic confrontationist manner.
The AAP is celebrating one particular part of the order which said that the Lt Governor was bound by the aid and advice of the Council of Ministers, that he could not obstruct the clearing of files pertaining to policies and programmes of the Government. While the Delhi Government would send such file to the Lt Governor, the latter’s concurrence was not mandatory. Taking a cue from this, the Kejriwal regime has already sought to fast-track projects that had been held up because their approval has been pending with the Lt Governor.
But the overall verdict does not weigh in the AAP’s favour, especially when one considers the applicability of Article 239AA of the Constitution of India, on which the entire dispute hinged. The apex court has made it clear that Delhi, not being a full State and enjoying a unique position as it comprises the national capital, has to be considered differently. As such, the Lt Governor has a free hand in judicial and quasi-judicial functions. And since the provisions of the Article have not been amended, the basic constitutional scheme of things for Delhi, which the AAP wished to alter to gain complete control over governance, remains in place as before.
It must be remembered that Article 239AA forms a part of the section on Union Territories of the Constitution, and that alone makes it obvious beyond doubt that Delhi is a Union Territory and, that combined with its unique status limits the role of an elected Government — unlike in the case of other Union Territories or States. It means that the Lt Governor still continues as the Administrator, and that he can refer matters of differences between him and the Delhi regime to the President of India for resolution, and that pending such resolution, he can take necessary action if the issue requires an urgent decision. The Lt Governor continues to have primacy over matters related to law and order, land and police.
The three concurrent judgements that the Bench delivered can at best be seen as defining the broad parameters of the respective authorities of the elected Government and the Lt Governor in Delhi — officially named as the National Capital Territory of Delhi. Specific sticking points such as relating to services and the jurisdiction of the Anti-corruption Bureau, would be dealt separately by a regular Bench.
The apex court’s verdict is more of an admonishment delivered to errant children by a school teacher: Everyone must work harmoniously for the larger public good; the Lt Governor must not be obstructionist; there is no space for the politics of anarchy; differences must be sorted out in a spirit of give and take, etc.
What is mystifying is that the apex court has not categorically set aside a Delhi High Court ruling of August 2016 which held that the Lt Governor was not bound by the aid and advice of the Council of Ministers and that he was Delhi’s administrative head. If the apex court Bench has concluded that the aid and advice by binding on the Lt Governor, it should have set aside the High Court’s order in no uncertain terms. Given this and other ambiguities, it won’t be surprising that at a later stage, one party or the other will yet again approach the apex court for clarifications or reviews.