Centre, LG cannot encroach upon executive powers: AAP govt to SC

The Delhi Government has exclusive executive powers in relation to matters falling within the purview of Legislative Assembly and neither the Centre nor the President or the Lieutenant Governor (LG) can encroach upon these, the Supreme Court was on Thursday told.

A bench of Justices A K Sikri and R K Agarwal said that it is correct that the elected government should have some powers but whether it will be as per the Delhi High Court verdict or as it is being perceived by the Delhi government. "We need to first look into this issue. We have to analyse the powers of the LG as to how much power he has and what are his powers," the bench said.

Senior advocate Gopal Subramaniam, appearing for Aam Aadmi Party (AAP) government, said that the Government of National Capital Territory of Delhi (GNCTD) except for public order, land and police possesses exclusive powers in relation to all other entries in state and concurrent lists and neither the central government nor the President or the LG has any role or power with regard to all other matters.

He said that council of ministers are "subservient" to the Constitution, to the GNCTD ACT but certainly they are not subservient to the authority which is not contemplated in the Constitution. "We are seeking only the special status as contemplated under Article 239AA of the Constitution. It's a narrow issue but requires interpretation. We need to see what are the limitation and amplitude of the LG's power under the Article 239AA," Subramaniam said during the day-long hearing.

He said that the Constitution has given a face and identity to a government in Delhi after the inclusion of Article 239AA and the executive decisions taken and implemented by it cannot be reversed by the LG. "The central government says that since Delhi is a Union Territory, it can exercise executive powers here but this was not the scheme of things which was contemplated in the Constitution," Subramaniam said.

He said that the LG cannot exercise its power with respect to services as it does not fall under the purview of the Centre under the state list. "The stand of the Union of India is that you (the Delhi government) do not have executive powers and your aid and advice is not binding on the LG. The Centre says the LG can use his discretion in case of difference of opinion and refer the matter to the President/Centre," Subramaniam said, adding, "This is complete mutilation of Article 239AA." 

The senior lawyer further said that the high court has relied on an old Act of 1963 and gave its judgement holding that Delhi is a Union Territory instead of relying on the later Act of 1991. "There will be anarchy and no governance if every decision of the government is reversed by the Lieutenant Governor which was not contemplated in the Constitution. It is the violation of the Constitution. He is the custodian of the Constitution, he has to protect the Constitution. Statesmanship, mutuality and dignity is expected from the LG, as was contemplated," Subramaniam said.

He said that Parliament has been given primacy in case of legislative powers and it can formulate laws for any part of the country. "In Delhi's case, Article 239AA (3) preserves Parliament's legislative powers over all the subjects in the state and concurrent lists. However, no such power is reserved to the Centre/President," he said, adding that overriding powers have been given to Parliament in case of legislative powers but it refrains from doing likewise in case of executive powers.

He said that the constitutional provisions stipulate that the Delhi council of ministers has executive powers to aid and advise the LG on all matters in the state and concurrent lists except for the three reserved subjects -- land, police and public order. "The GNCTD Act explicitly limits the discretion of the LG, and any delegation in that behalf to him by the President only to matters falling outside the purview of Delhi's legislature. Also the Act says these are matters on which the the LG is 'required to act' on the aid and advise of the council of ministers. These features are absent in the earlier laws of 1951 and 1963," he said.

Subramaniam said that since the law rules out the LG's discretion on all matters that fall within the purview of the elected government, there is no occasion for him to differ or have an opinion on these matters. "There is no other constitutional or political principle, which gives him any role in these matters," he said while listing out 13 propositions before the bench. Subramaniam concluded his arguments after the bench posted the matter for further hearing on February 8.

The apex court had on December 14 observed that the Delhi government should have some powers otherwise it cannot function while hearing the appeals of the AAP government. On September 9, the apex court had refused to grant an interim stay on the verdict of the Delhi High Court of August 4 last year.