Government of NCT of Delhi v Union of India and Another (2018)

The rule that a constitutional head acts on the aid and advice of the Council of Ministers is the core of cabinet government. For the President and the Governors it was settled long ago — the opinions in this case set out the Samsher Singh v State of Punjab line on Article 74(1) and responsible government. The question here was whether the same rule governs Delhi, which has an elected Assembly and Council of Ministers under Article 239AA but remains a Union territory administered by a Lieutenant Governor.

The Constitution Bench answered: Delhi is not a State, but within its sphere the Lieutenant Governor is bound by the aid and advice of the Council of Ministers, has no independent decision-making power, and may use the reference to the President under the proviso to Article 239AA(4) only by way of exception. It is the leading modern authority on how aid and advice works outside the President–Governor setting.

A batch of writ petitions in the Delhi High Court raised unresolved disputes between the Lieutenant Governor of the NCT and its Council of Ministers headed by the Chief Minister. They concerned, among other things, notifications on 'Services', the Anti-Corruption Branch, Commissions of Inquiry appointed by the Delhi Government, nominee directors on power distribution companies, and policy directions to the Delhi Electricity Regulatory Commission.

The Delhi High Court, by judgment of 4 August 2016, held among other things that Delhi continues to be a Union territory after the Sixty-ninth Amendment and that the Government of NCT of Delhi's contention that the Lieutenant Governor is bound to act only on the aid and advice of the Council of Ministers "is without substance and cannot be accepted." It held several Delhi Government decisions illegal because they were taken without communicating them to the Lieutenant Governor for his views.

The Government of NCT of Delhi appealed. A two-judge Bench, by order of 15 February 2017, referred the appeals to a Constitution Bench because substantial questions on the interpretation of Article 239AA were involved.

1. What is the constitutional status of the NCT of Delhi after Article 239AA — is it a State?
2. What is the extent of the executive power of the Council of Ministers of Delhi?
3. Is the Lieutenant Governor bound by the aid and advice of the Council of Ministers under Article 239AA(4)?
4. What is the scope of the proviso to Article 239AA(4), which lets the Lieutenant Governor refer a difference of opinion on "any matter" to the President?
5. Must decisions of the Council of Ministers receive the Lieutenant Governor's concurrence, or only be communicated to him?

The reference was answered and the matters were directed to be placed before the appropriate regular Bench for decision on the individual appeals. The three opinions reach the same result; Chandrachud J recorded "a broad coalescence of our views", and Ashok Bhushan J said he substantially agreed with the Chief Justice.

Status of Delhi

• The Chief Justice's conclusion (xii): "by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme." Its status is "sui generis, a class apart", and the Lieutenant Governor is not a Governor of a State but "an Administrator, in a limited sense, working with the designation of Lieutenant Governor."
• But Article 239AA provides a directly elected Assembly with power over State List and Concurrent List matters, "barring those excepted", and "a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision." The excepted State List subjects are public order, police and land.

Executive power

"the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative Assembly". It extends to all Concurrent List subjects and all but the three excluded State List subjects; where Parliament has legislated, executive action must conform to that law. The Union has exclusive executive power over the three excluded subjects.

Aid and advice binds the Lieutenant Governor

Conclusion (xvii): the Lieutenant Governor "is bound by the aid and advice of the Council of Ministers" so long as he does not exercise his power under the proviso, and "The Lieutenant Governor has not been entrusted with any independent decision-making power." He must either act on aid and advice or implement the President's decision on a reference.

Collective responsibility reinforces this: "If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated."

The proviso is the exception

"The words “any matter” employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean “every matter”." The power "represents the exception and not the general rule", to be used in exceptional circumstances, and the Lieutenant Governor "should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President." A difference of opinion "should have a sound rationale". Under the Transaction of Business Rules, differences must first be attempted to be settled by discussion and dialogue.

Chandrachud J put the same point this way: "a difference within the meaning of the proviso cannot be a contrived difference", and if 'any matter' meant 'every matter', the President would assume administration of every aspect of the territory, "thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi".

Communication, not concurrence

The Rules require that decisions of the Council of Ministers be communicated to the Lieutenant Governor, "but this does not mean that the concurrence of the Lieutenant Governor is required." The communication keeps him apprised so that he can exercise his power under Article 239AA(4) and its proviso.

Interpretation

The Court read Article 239AA purposively: "The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics."

The NCT of Delhi is not a State, but under Article 239AA(4) the Lieutenant Governor is bound by the aid and advice of the Council of Ministers on all matters within the legislative competence of the Delhi Assembly (everything in the State and Concurrent Lists except public order, police and land), and has no independent power of decision. Decisions of the Council of Ministers must be communicated to him but do not need his concurrence. His power to refer a difference to the President under the proviso is an exception, to be used for real and reasoned differences after dialogue has failed, not for every matter.

• Direct question: Is the Lieutenant Governor of Delhi bound by the aid and advice of the Council of Ministers? Discuss Article 239AA. Start with the general rule (Samsher Singh, Article 74/163), then Delhi's sui generis status, then conclusions (xvii) and (xviii) — bound by aid and advice; "any matter" is not "every matter".
• Problem question: the Lieutenant Governor refuses to implement a Cabinet decision on a matter in the State List (not public order, police or land) and refers every such decision to the President. Answer: executive power is co-extensive with legislative power; concurrence is not required; the proviso is an exception needing a sound rationale after dialogue — mechanical referral is contrary to the Constitution.
• Short note: Collaborative federalism / constitutional trust — the Court's language on federal balance and constitutional morality is useful in any Unit 2 answer on the executive.
• Link: read this case with Samsher Singh v State of Punjab to show how the aid-and-advice principle travels from the President and Governors to a Union territory with a legislature.