New Delhi: One of the constant power struggles in the national capital will come to an end today as a five-judge Constitution bench will deliver its verdict on who rules supreme in Delhi, whether it’s the elected state government or the Centre, represented by Lieutenant Governor.
The Arvind Kejriwal’s recent eight days sit-in at Lt Governor Anil Baijal’s office had marked the ultimate point of animosity between the two.
But as the court gears up to deliver the verdict, arguments made by both the Delhi government and the Centre have spanned over several important legal points. News18 charts down main points of argument and a history of the case.
When did the matter reach the top court?
The genesis of this case lies in the Delhi HC verdict which went against the Delhi government. Arvind Kejriwal had petitioned the Delhi HC stating that there were frequent disputes between the state government and the L-G which started from the time of former L-G Najeeb Jung and continued to face issues with the current L-G Anil Baijal.
The Delhi government called it a “classic case of federal dispute” but in August 2016, High Court did not accept such a contention and ultimately rejected the petition. It upheld the L-G’s power over the police, land, public order as well as “services”.
It was against this verdict that the Delhi government approached the top court. The government made a case that an elected government cannot be without any power and the constitution could not give the Lieutenant Governor Powers to "stultify daily governance by sitting over files". The court will have to now determine who the administrative boss of Delhi is.
When did the hearing begin in the case?
The hearing began on November 2 last year. The bench of Chief Justice Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud, and Justice Ashok Bhushan heard the case.
Senior advocates Gopal Subramaniam, P Chidambaram, Indira Jaising and Rajeev Dhavan and Shekhar Naphade argued for the Delhi government. It was only in late November that the Centre started arguing the case.
What were the main arguments made by the Delhi Govt?
The primary case of the Delhi government rested on the mantle of Article 239 AA. This article seeks a declaration from the courts on the limits surrounding the constitutional relationship between the AAP government and the Centre.
Essence of Representative Democracy Eroded - The first argument put forth was that this Article 239AA underscores the fact that Delhi is an elected government for which people vote. It in a way underscores the accountability of the executive to the legislature and that such an accountability does not take place as executive often does not have powers to execute the decisions of the legislature and thus the essence of a representative democracy stands eroded.
No Interference by L-G warranted, L-G only a Titular Head – Argument was made that L-G cannot interfere with the day to day functioning of the Delhi government. It was also contended that asking for each and every file which contains decisions taken by Delhi government was not needed as L-G was only the titular head.
L-G not a Viceroy, But an Agent of the President – P Chidambaram while arguing had put forth that the “Lieutenant Governor of Delhi is not a “Viceroy”, but simply an agent of the President whose powers depend on the pleasure of the President”. The elected government concept in Delhi was included as people found it necessary.
Contention of Clause 4 to Article 239 AA – The clause states that when there is a difference of opinion between the L-G and his ministers on “any matter” then such a matter needs to be elevated to the President. It was argued that L-G may “discover difference” or make them up with his ministers and refer them to the president. In such a situation, the government of Delhi cannot function or would so at snail pace.
Responsible Government of Delhi Not Representative – Senior Advocate Rajeev Dhavan who ended up in a war of words with CJI Dipak Misra had argued that Delhi has a responsible government and not a representative government like Puducherry, as it derived power from the Constitution. “If a government has to act purely on the basis of law then a government cannot govern,” the lawyer had said.
How did the Centre fire back?
The main contention of the Delhi government was that day-to-day functioning of the state government was severely stalled as the L-G was not clearing the files.
But Additional Solicitor General Maninder Singh argued that out of 650 files received by the Lt Governor in the last three years, there was a difference of opinion on only three cases.
Next, it was made clear that there cannot be any question of Article 239 AA as it dealt with power and status of Delhi and was a “complete code” in itself.
Singh had submitted that Delhi, unlike other states, belonged to the whole of India and when the elected government are spoken about in Delhi, it is the Union of India as it is an elected government and has a “supremacy as far as Delhi legislative Assembly is concerned”.
The argument was also made that Delhi was accorded special status among the union territories but there was no entry in the state list. This was a good move as a union territory remains a union territory even if it has a legislative assembly.
But the entire contention that Delhi government was being sidelined was a wrong allegation as “representatives of the Delhi government were present in all meetings convened by the L-G,” and that these were only baseless allegations made by the Kejriwal government.
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