7 PM Editorial |LG of NCT, Delhi Should Uphold Constitutional Provisions|18th August 2020

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LG of NCT, Delhi Should Uphold Constitutional Provisions

Introduction:

Appointment of public prosecutors in the Delhi riots case by LG(Lieutenant Governor), has brought division of powers between state executive and LG into focus. LG had referred the decision of appointment of public prosecutors to the president and in the meantime appointed prosecutors who are different from the state government’s intended appointees.

Critics point out LG’s action is against the 2018 supreme court judgment which made the elected council of ministers responsible for executive decisions and LG being only a nominal head.

Supreme court’s 2018 judgment:

It was addressing jurisdictional conflicts between the government of NCT and LG who is appointed by the president on advice of the union government. It clarified the provisions of Article 239 AA which provides for elected legislature and council of ministers for NCT, Delhi.

 

Article 239AA:

● NCT Delhi with a Lieutenant governor acting as administrator

● Elected legislative assembly and council of ministers for NCT, Delhi

● Legislative assembly can legislate on all state and concurrent list subjects except public order, police and land. But parliament is the final legislative authority and can override laws of assembly of NCT, Delhi

● Any difference of opinion between governor and council of ministers has to be reserved for president who decides the matter and in the meantime LG can issue such orders as he may deem necessary in case if urgent action required

Major points of judgment:
  • LG is bound by aid and advice of council of ministersexcept in subjects of land, public order and police
  • LG’s concurrence is not needed for executive decisionsand LG has no powers to overrule decisions of government
  • Difference of opinion has to be referred to the presidentunder Article 239AA(4) provisio. Governor cannot make decisions.
    • Governor cannot act in a mechanical manner and refer every decision to the president. Only genuine cases of public interest and not for every trivial matter.
    • Principles of collaborative federalism, concept of constitutional governance, objectivity, etc. must be considered before making reference to president
  • Executive power vests with the council of ministers of NCT, Delhiand the union government has no overruling powers. Only role for the union government is through reference to the president by the governor. But the governor cannot refer executive decisions merely on differences of opinion. Only constitutionally important issues can be referred to the president.

Judgment had advised the LG that he/she must act as facilitator rather than having hostile attitude to the council of ministers of NCT, Delhi.

Yet the judgment has not clarified explicitly on which topics can LG refer to the president. Only broad values like collaborative federalism, concept of constitutional governance, objectivity are provided. Hence if LG refers routine administrative matters to the president and in the meantime exercises power to pass orders, then it goes against the spirit of 2018 judgment.

Appointment of public prosecutors and violation of 2018 judgment:

Appointment of public prosecutors is an executive power of the UT(Union territory) council of ministers. Hence the referral by LG to the president is seen as violative of the 2018 judgment which laid down principles of collaborative federalism and concept of constitutional governance.

Conclusion:

LG must heed to advice of the supreme court in being a facilitator rather than hindrance to collaborative federalism. LG must uphold the law of the land and constitutional provisions.

Source: The Hindu

Mains question:
  1. Article 239AA has created more friction than collaboration between state and union executives. Discuss? [15 marks, 250 words]
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