In this article, Kopal Tewary of RGNUL discusses the Powers of Lieutenant Governor and analyses the Constitutional Provisions.

Governor and Lieutenant Governor

Governor is the head of the state, appointed by the President. After the 7th Constitutional Amendment, 1956 a Governor can be appointed for more than one state.

Lieutenant-Governor is the head of a Union Territory.

However, in India, the post is present only in the Union Territories of Andaman and Nicobar Islands, Delhi and Puducherry. In other Union Territories, administrators are appointed.

The functions and powers of a Governor and a Lieutenant Governor are, more or less, the same. The LG, like the Governor, acts a titular head of the Union Territory. But, the powers of an LG are wider than that of a Governor. This is because, a Governor of a state has to act solely on the aid and advice of the Council of Ministers, whereas, the LG does not need the approval of the Council of Ministers on every matter. In case of Delhi, the government exercises no power in the domain of land, law, and police. The LG has complete discretion to decide upon any of these matters.

Role of Lieutenant Governor in Delhi

The First Schedule of the Constitution of India grants Delhi the status of a Union Territory. It is administered by the President, acting to such extent as he thinks fit, through an Administrator to be appointed by him (under Article 239).

The 69th Constitutional Amendment Act, 1991, added article 239AA to the constitution. the Union Territory of Delhi is called the National Capital Territory of Delhi and the Administrator thereof appointed under Article 239 is designated as the Lieutenant Governor. (Article 239AA)

The Sec. 41 of the GNCT (Government of National Capital Territory) of Delhi Act, 1991 delineates the realm of the powers of the Lieutenant Governor in Delhi. The Lieutenant Governor shall act in his discretion during a matter that falls outside the range of the powers conferred on the Legislative Assembly. The section reads as follows:

41. Matters in which Lieutenant Governor to act in his discretion.

(1) The Lieutenant Governor shall act in his discretion in a matter–

(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or

(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi- judicial functions.

(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.

(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi- judicial functions, the decision of the Lieutenant Governor thereon shall be final.

• According to this section, if the Lt. Governor is under any law required to act in his discretion, his decision on that case will be final.
• The LG exercises his authority with the help of Police Commissioner of Delhi and Vice Chairperson, Delhi Development Authority (DDA) who have their independent administrative setups.
• Lt. Governor is Ex-officio Chairman of DDA, however he exercises his executive functions through Appellate Authority under various Acts/Rules/Regulations as applicable in Delhi.
• In the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lt. Governor can refer it to the President for decision and act according to decision given on that by the President.
• Under President’s Rule, the Lt. Governor becomes full-fledged executive head of the government. He has the power to appoint a group of advisors which will act as Council of ministers.
• The time duration of President’s rule in the UT is also subject to the discretion of the Lt. Governor.

The post of Lt. Governor was first established in September 1966 after the Delhi Administration Act, 1966 came into effect. At the commencement of the primary session after each election to the Assembly and at the commencement of the first session of every year, the Lt. Governor addresses the House.

Powers of Lieutenant Governor

The powers and functions of the Lt. Governor of NCT of Delhi are derived from the constitutions and several statutory provisions. Some of them are:-

(i) Provisions of the Constitution. (Art 239)

(ii) Provisions of the Government of National Capital Territory (GNCT) of Delhi Act, 1991

(iii) Provisions under various Acts of the Parliament.

(iv) Delhi Police Act 1978, Delhi Development (DDA) Act 1957, (Delhi Municipal Corporation) DMC Act 1957, Environmental Protection Act, etc.

(v) Delegation through executive orders issued under Article 239(1) by the President under various law.

Article 239AA

Art 239AA of the Constitution of India has some special provisions with respect to Delhi. The article was inserted in the constitution through the 61st Constitutional Amendment Act. The article lays down the basis of the powers conferred upon the Lieutenant Governor of the Union Territory by the Constitution.

The article reads as follows:

‘There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.’

However, the interpretation powers of the LG in Delhi and the extent of the control exercised in the decisions and functioning of the government have been murky since last few months. It has been a subject of debate for the country as the differences between the state government and the LG reached unprecedented heights. The Supreme Court, in a recent judgement, laid down broad parameters for the governance of Delhi while enunciating the powers resting with the LG.

Supreme Court’s Verdict on the Powers of Lieutenant Governor

In its verdict on July 4th, 2014, the Supreme Court clearly laid down the extent and boundaries of the powers vested in the post of Lieutenant Governor of the Union Territory of Delhi. The verdict was given in the case which arose out of the power tussle between the Delhi government and the Centre continuing since last few months. The Supreme Court said that Lieutenant Governor Anil Baijal does not have independent decision making powers, and is bound to act on the aid and advice of the Council of Ministers.

The CJI Dipak Misra and Justices Sikri and Khanwilkar gave the majority verdict.

The Court said that “all decisions of the Council of Ministers, who are elected representatives of the people of Delhi, must be communicated to the Lieutenant Governor but that does not mean his concurrence is required”. The court ruled that “there is no room for absolutism and there is no room for anarchism also”. It further said the LG should not act in a mechanical manner and stall the decisions of the Council of Ministers.

Roots of the case

The root of the case lies in the appeal made by the incumbent government of Aam Aadmi Party in Delhi against the decision of the Delhi High Court stating that the Lieutenant Governor is the sole administrator of the region. The Centre had issued a notification on May 21, 2015, giving certain rights to the LG which the Aam Aadmi Party claimed were “unprecedented powers” on matters like public order, police and services.

The fundamental conflict between the Delhi government and the Lieutenant Governor has its roots in Article 239AA of the Constitution, which gives Delhi the special character of a Union territory. It grants Delhi a Legislative Assembly that has a Lieutenant Governor as the administrative head. The subjects of law, police and public order are beyond the jurisdiction of the Delhi government. The government has full powers to legislate on the rest of the subjects.

The struggle has ensued since the Lt. Governor took charge of the office from Najeeb Jung. Before that, the AAP government has also been in constant discord with the former LG Najeeb Jung. Over the past few months, Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor Anil Baijal have been having certain disagreements. Consequently, as has been alleged by the AAP government, Baijal has been stalling and obstructing decisions made by the government. For eg. In March 2018, Anil Baijal had rejected the Delhi government’s proposal for doorstep delivery of ration. CM Kejriwal had hit back alleging that the “important” measure had fallen victim to “petty politics”.

In June, CM Kejriwal, along with three cabinet colleagues- Deputy CM Manish Sisodia, PWD Minister Satyendar Jain, and Labour Minister Gopal Rai, held a sit-in protest at Baijal’s office alleging that Indian Administrative Service officers working for Delhi had gone on an unofficial strike and are not letting the government run smoothly. After Delhi Chief Secretary Anshu Prakash was allegedly assaulted by an AAP MLA earlier this year. On the succeeding day, PWD Minister Satyendar Jain launched a hunger strike upon the failure of the LG to meet the protesting ministers.

Important Observations

• Bound by the aid and advice of Ministers

In his judgement, Chief Justice Misra stated that: “The L-G is bound by the aid and advice of the Council of Ministers of the Government of Delhi.” He cannot act on his own. The Council of Ministers has to communicate its decision to the L-G, but this does not mean that it is bound by the recommendation of the L-G. All five judges of the bench concurred on this point.

2. Can refer a matter to the President in case of uncertainty

It was also held in the judgement that the “L-G does not exercise his power under the proviso to clause (4) of Article 239AA, which states that the L-G can refer a matter to the President of India if there is doubt about under whose purview it falls. The L-G has not been granted any independent decision-making power. He has to either act on the ‘aid and advice’ of the Council of Ministers, or he is bound to implement the decision made by the president on a reference being made by him.”

3. Must not be mechanical

The bench ruled that “The L-G cannot act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. The difference of opinion between LG and Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.”

4. Collective responsibility

In the judgement, the judges emphasised that the state government and the L-G must work together to maintain constitutional harmony and avoid clash of powers. The CJI opined that, “Ours is parliamentary form of government guided by the principle of collective responsibility of the Cabinet… The principle of collective responsibility is of significance in the context of aid and advice. If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to differences with the L-G,the concept of collective responsibility would stand negated…” The court further ruled that in order to balance the constitutional federal structure, the LG cannot interfere in each and every matter of the government. Rather, he should intervene only in exceptional cases.

5. Powers of the Government to legislate on matters without interference

The bench stated that under Article 239AA, the executive power of Delhi government “is co­extensive with the legislative power of the Delhi Assembly” and therefore, the executive power of the Council of Ministers spans over all subjects in Concurrent List and all but three, namely, land, police, and public order in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the state must conform to the law made by the Parliament.”

6. No anarchy or absolutism

According to the judges, “there is no space for anarchy and absolutism in our Constitution, and the L-G does not have to refer every matter to the President of India.” Justice Chandrachud said that the Lieutenant Governor must remember it is the elected government that is answerable to the people. Governance will come to a standstill if every decision is referred to the President. The popular will of the people, which has its legitimacy in a democratic, setup cannot be allowed to lose its purpose in simple semantics.

7. No Governor – status of Lieutenant Governor

The judges, interpreting Art. 239AA, said that “the status of the NCT of Delhi is sui generis and the status of the L-G is not that of a governor. He remains an administrator, in a limited sense, which gives special status to Delhi as the NCT, stating that the region will be under the control of the L-G.” Justice Chandrachud added that “the court has to further democratic values. In a democratic governance, the real power and substantive accountability is vested in elected representatives… the sovereignty of the people, the democratic way of governance and secularism is intrinsic to the Constitution. The basic structure imposes restrictions on the exercise of constituent power.”

8. Prior consent of LG required, though not mandatory

Justice Chandrachud observed that every decision of the government should get the prior consent of the L-G. But the court also observed that the Lieutenant Governor’s consent was not mandatory in every matter. Justice Ashok Bhushan added that the opinion and decision of the elected government has to be respected, but the Constitution does not provide that the L-G has to concur with all decisions of the government.

Demand for statehood

As a consequence of the ongoing events, the demand for granting statehood to Delhi has also surfaced. Amid anticipation of the Supreme Court verdict, the AAP government decided to open 3,000 centres across the city where signed forms in support of the party’s full statehood demand for Delhi will be deposited by the party workers. Under the campaign, the AAP workers will go door to door and collect signatures supporting their full statehood demand for Delhi.

Points of difference between the Lieutenant Governor of Delhi and Puducherry

Both Delhi and Puducherry has an elected legislature and government. But, the functions and powers of the Lieutenant Governors of Delhi and Puducherry are marked by certain differences.

• The LG of Delhi enjoys greater powers than the LG of Puducherry.
• The LG of Delhi is vested with “Executive Functions” that enable him to exercise powers in matters connected to public order, police and land “in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution”.
• While the L-G of Delhi is guided by the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the L-G of Puducherry is guided by the Government of Union Territories Act, 1963.
• Articles 239 and 239AA of the Constitution, as well as the Government of National Capital Territory of Delhi Act, 1991, clearly underline that the role of Centre is more prominent in the UT of Delhi, where the L-G is the eyes and ears of the Centre. Under the constitution, the Delhi Assembly has the power to legislate on all subjects except law and order and land.
• Whereas, the Puducherry Assembly can legislate on any issue under the Concurrent and State Lists. However, if the law is in conflict with a law passed by Parliament, the law passed by Parliament prevails.

Simply Put

Simply put, the court dictated that the state government and the LG ought to work collectively, with the LG working on the aid and advice of the Council of Ministers, except on matters which are outside the legislative powers of the state government.

The state government, on the other hand, must seek the acceptance of the LG on all the decisions, though not mandatory. 

After the judgement, the raucous regarding the unclear dimensions of the powers of the Lieutenant Governor in Delhi will come to an end. The Supreme Court has, by clearly pronouncing the extent of the LG’s powers, put to rest the highly contentious issue in the UT. Consequently, this will limit the encroachment of the government and the LG in each other’s functional spheres.