PTI
New Delhi, Nov 2: The Supreme Court has commenced the crucial hearing to decide whether the elected government or the Lieutenant Governor enjoys primacy in the administration of the Union Territory of Delhi, observing that the Constitutional scheme was prima facie tilted in favour of the LG.
The SC said that Article 239AA of the Constitution is unique regarding Delhi and prima facie it appears that the LG is given more powers here, unlike in other Union Territories.
A five-judge Constitution bench headed by Chief Justice Dipak Misra is hearing pleas filed by the Delhi government against the HC verdict, which had held that Delhi is not a state and that the LG is its administrative head.
The AAP government told the SC that its ministers have to bow down before bureaucrats to get their opinions and, by virtue of the proviso in Article 239AA, the babus do not acknowledge them as heads of departments.
“Article 239AA is unique to Delhi. Prima facie it appears that it gives more power to the Lieutenant Governor unlike other Union Territories. The LG in Delhi has primacy under the Constitution,” the bench, also comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, said.
It put several questions on Article 239AA to senior advocate Gopal Subramanium, who led arguments for the Delhi government.
Subramanium said that the LG was taking several executive
decisions and a harmonious interpretation of Article 239AA is required to fulfil the constitutional mandate for a democratically elected government in Delhi.
“There are around 1.14 lakh vacancies, but I cannot fill it up and have to seek the LG’s permission. I can’t take steps to stop deaths in sewers. This is hampering governance. The LG cannot use his power under Article 239AA proviso (4) to wreck governance by sitting over files,” he said.
Justice Chandrachud said that LG cannot stultify a scheme by sitting over files. He is bound under Article 239AA to refer the matter to the President in case of difference of opinion.
Subramanium said the Delhi government accepts the supremacy of Parliament and its powers but the motive behind incorporating Article 239AA in the Constitution by amendments was to give voice to the people by an elected government. He said that proviso (4) in Article 239AA cannot be used by the LG to frustrate the Constitutional mandate of an elected government in Delhi.
“The law is very clear at present that the LG partially enjoys delegated powers of President and partially has to work as per the advice of the council of ministers. If there is a difference of opinion, then he may refer the matter to the President for resolution,” the bench said.
Arvind Kejriwal government also blamed the Centre for paralysing the executive functions of the democratically elected government in Delhi through the LG. “I want proviso (4) of Article 239AA to be given a meaning which is consistent with the scheme by which both can coexist, as was the aim behind the amendment in
Constitution”, Subramanium said.
