Arvind Kejriwal can legitimately claim that it was a decisive political victory in a penalty shootout, in the wake of the constitution bench judgment of the Supreme Court in Government of NCT Delhi vs. Union of India. Politically, the Aam Admi Party can trumpet this win as a constitutional slap to Red Card the Central government.
In a judgment running to 535 pages, penned by Chief Justice Dipak Misra, for himself and two companion judges A.K.Sikri, A.M.Khanwilkar, and Justices Dhananjay Chandachud and Ashok Bushan, writing for themselves, all three judgments have unanimously concluded that ‘aid and advice’ of council of Ministers led by Chief Minister Arvind Kejriwal, cannot be disregarded by the Lt.Governor (LG) to impose his own imprimatur on the decisions of the Cabinet.
The contours of the dispute is imbued in politics and well known. According the Kejriwal government, the interference was deliberate as the BJP refused to accept the mandate of the people who returned 67 MLAs of AAP and 3 only of BJP. Kejriwal government sought legal remedy.
The matter reached the Supreme Court which was required to advert to the issue that essentially pertained to the powers conferred on the Legislative Assembly of the National Capital Territory of Delhi and the executive power exercised by the elected Government of NCT of Delhi.
In the light of the ruling of the nine Judge Bench in New Delhi Municipal Corporation, it was held that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme, and the role of LG was not that of a Governor of a State.
Kejriwal triumph can be summarised in this pregnant finding. “The Lieutenant Governor has not been entrusted with any independent decision making power.” The central government’s submission that LG Status was unique and had a streak of ‘independence’ was trumped constitutionally, and BJP has egg on its face. It is a 5:0 scoreline.
The critical and clinching finding of the Bench is captured in these words, “The meaning of ‘aid and advice’ has to be construed to mean that the LG is bound by the Council of Ministers and this position holds true within the enumerated powers. He has to either act on the ‘aid and advice’ or he is bound to implement the decision taken by the President on a reference being made by him.”
The Supreme Court has conceded that there is bound to be differences of opinion between the LG and the Delhi Cabinet. The difference of opinion should have a sound rationale and the least that was expected of responsible constitutional functionaries was to display ‘profound sagacity and judiciousness’. Would the constitutional entities heed the advice?
The Supreme Court has ruled that the LG must work harmoniously with his Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance. Upon reading the three verdicts, it can be regarded as a treatise on the ‘constitutional values in the working of harmonious relations between the Executive Branches”
To the objective bystander, with no axe to grind, it was obvious that the BJP has refused to accept the colossal defeat in the Delhi Assembly elections. In the wake of thumping win in the Parliamentary elections, where they swept Delhi, Modi-Shah combine strongly believed that Assembly was theirs. Unable to stomach the loss and allied with the agitational ways of Arvind Kejriwal, the office of the Lt. Governor came to be used as leverage.
BJP may still cherrypick from the 535 pages to claim that they have not lost. VAR - in football lingo- has proved otherwise But truth to tell, politically and constitutionally, the LG has been told that he has no independent devision making power and has to go by the ‘aid and advice’ of the Cabinet. If there was a ‘legitimate difference of opinion’ he needs to sit and sort out or have it referred to the President for ‘resolution’.
It would be singularly unfortunate if the Modi Government used this order to refer every other decision of the Kejriwal Cabinet for resolution by the President, and to continue playing politics, ignoring the decisive verdict of the Supreme Court as ‘constitutional mandate’. Would it be too much to expect both sides to pepper over the political differences with loads of constitutional wisdom contained in the verdict, even if it could have been tighter and pointed on the ‘powers’ in dispute.
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