Question raised earlier on independence of SC

After January 12, 2018, when the four most senior judges made public their letter to the Chief Justice of India, fresh concerns were expressed about the independence of judges. Some experts suggested that when a powerful government with a massive majority assumes power, judges do not assert themselves in the same way as they do when a coalition government is ruling.

SC judgements against Central Govt.

SC’s judgment on the role of the Delhi Lieutenant-Governor has put to rest such doubts. Even before this, the CJI had decided the Arunachal Pradesh matter against the central government, and the judgment in the Hadiya case too had upheld her right to choose her spouse.

SC judgement on Delhi Govt

The 535-page, unanimous judgment of the five-judge Constitution Bench comes at a time when the central government has been justifying all actions of the Lt Governor. In fact, no Governor or Lt Governor really acts on his own. Indian Governors have traditionally been loyal to those ruling from Delhi. In the Arunachal case too, the Supreme Court had criticised then Governor J P Rajkhowa.

L-G bound by the “aid and advice” of the Council of Ministers

The authoritative finding is that the Lt Governor is just an “administrator” and administrative head in a limited sense, and that he is bound by the “aid and advice” of the Council of Ministers. He has no independent powers of his own; he has to either go by the advice of ministers, or comply with the orders of the President on matters referred to him.

He cannot interfere in every case, there is no need of his concurrence in each matter, and he can refer matters to the President only in exceptional situations and not in a “routine or mechanical manner”. This means the court has reversed the Delhi High Court judgment that had held that the Lt Governor is not bound by the “aid and advice” of ministers.

The CJI held that “any matter” in Article 239AA(4) does not mean “every matter”; the Lt Governor has to employ “constitutional objectivity” and exercise this power in the rarest of rare situations for valid reasons. The Lt Governor does not have the power to change every decision or differ with every decision of ministers. Certainly, just like Governors, he is to be apprised of every decision by the ministers, but his concurrence is not necessary. The CJI explicitly held that the Lt Governor’s difference of opinion with ministers should never be based on a perception of a “right to differ”, but should be based on “constitutional trust”. At the same time, ministers must keep in mind that Delhi is not a state and the Lt Governor is not a titular head; rather, he enjoys the powers of an administrator.

Disputes should be referred to President: SC

In case of difference of opinion, the L-G should straightaway refer the dispute to the President for a final decision without sitting over it or stultifying the gov- ernance in the National Capital, the Bench said. It concluded that the governance of Delhi cannot rest upon the whims of one functionary — the Lieutenant-Governor.

Reversal of Delhi High Court decision

The judgment came on appeals filed by the NCT government against an August 4, 2016, verdict of the Delhi High Court, which had declared that the L-G has “complete control of all matters regarding the National Capital Territory of Delhi, and nothing will happen without the concurrence of the L-G.”

(Adapted from The Indian express and The Hindu)