Author : Sandeep Rana
Civil Appeal No(s).2357/2017
Hon’ble CJI DipakMisra
Justice Kumar Sikri
Justice Ajay Manikrao Khanwilkar
Justice DY Chandrachud
Justice Ashok Bhushan
The 69th constitutional amendment in the year 1992 has added two new articles – Article 239A and 239B under which the special status has been given to union territory of India. This states that the UT of Delhi now shall be called National capital territory of Delhi and it shall be administered by Lt. Governor. It also states that the legislative assembly shall have the power to make laws for NCT of Delhi on subjects under the state list and government list except public order, police and land in NCT of Delhi fall within the domain and control of the Central government.
Also, the CM and his ministers are elected to aid and advise the LG while exercising his function in relation to matters with respect to which the legislative assembly has power to make law. On the other hand, LG would not need aid and advice from the council of ministers in respect of matters related to public order, police and land.
ISSUE AND FACTS OF LAW
The SC has to decide-
- Should Delhi be treated like a Union Territory with the Lt. Governor as its executive head of NCT?
- Whether LC is bound by the aid and advice of the council of ministers on all matters where the Delhi assembly has the power to make laws?
There was an issue of division of administrative power between the Delhi government and the Central government over control of services like transfer of officials. The issue revolves around the administrative power of the Lt. Governor of Delhi in light of the special status as UT.
In Feb 2015, there was controversy between the Delhi lieutenant governor (LG) Najeeb Jung and Arvind Kejriwal (CM). When LC said that it was not mandatory for him to send files regarding police, public order and land to CM’s office, the Delhi Anti Corruption Branch (ACB) should not investigate central government employees. CM told all bureaucrats not to follow any order from the LG either oral or written without his approval and it was termed unconstitutional by LG and a question was raised on the legality of the enquiry commission formed by Delhi government and the appointment of a chief secretary without consulting the Lt. Governor. Delhi HC ruled that the LC had complete control of all matters regarding NCT of Delhi and as a result, all the enquiries initiated without the concurrence of Lt. Governors by the Delhi government were declared illegal and this decision was challenged before SC.
The Bench held that the LT Governor of Delhi is bound by the aid and advice of the Council of ministers except on the matters related to land, police and public order.
It also held that the LT Governor of Delhi has no power to interfere in any decision of the Delhi Government; the real powers must vest in elected representatives in democratic government.
Article 239 AA must be construed in a way that any matter is not inferred to mean ‘every matter’.