Jurisdictional Conflict in the Running of Delhi

Context: Issue of appointment of the public prosecutors in Delhi riots cases has resulted into jurisdictional conflict between Delhi government and the Lt. Governor.

Case Study:

Delhi riots case prosecutor appointment issue: The Lt. Governor referred the State list of appointees to the President citing a difference of opinion and consequently issued another list, ignoring the State’s executive jurisdiction in the matter.

Conflict between Delhi government and Lt. Governor:

• Powers of Lt. Governor – Constitutional provisions: 

• Article 239AA (4) says that in the case of a difference of opinion, the Lt. Governor shall refer ‘any matter’ to the President for decision and act according to that decision.

• However, the SC says  - The words ‘any matter’ doesn’t mean ‘every matter’ and thus is an exception, not a rule.

• If the Lt. Governor thinks that the matter is urgent, he can take immediate action on his own.

• Matters of Jurisdiction: The executive powers of the Union doesn’t extend to any of the matter which comes within the jurisdiction of Delhi Assembly. 

• Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.

Supreme Court guidelines in Government of NCT of Delhi vs. Union of India (2018):

• Restricted the powers of Lt. Governor: 

• SC described Articles 239AA and 239 AB as an exercise of establishing a democratic government for Delhi and should be arbitrarily subdued by executive actions.
• Aid and advice: The Lt. Governor is bound to act on the aid and advice except in respect of Land, Public Order and the Police.

• There is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government. 

• Restricted the jurisdiction of The Lt. Governor: 

• SC said that the Lt. 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
• This would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality. 
• The executive decisions of the State government cannot be referred to the President merely because the Lt. Governor has a di?erent opinion about them.

• Refer only Constitutionally important issues to President: The President is the highest Constitutional authority, and his decision should be sought only on constitutionally important issues.

Way Forward:

• The doctrine of Harmonious Construction: Lt. Governor and the Council of Ministers to use in full the mechanism provided in the Government of NCT of Delhi Act and the Transaction of Business Rules to overcome the differences. 
• Adherence to the law: When the Court declares the law and requires the constitutional authorities to follow it, they have to act in compliance and not in defiance.