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The Supreme Court on Thursday said that Delhi's lieutenant governor has more power than the governor of a state as he does not have to act on the aid and advice of the council of ministers all the time.
It said that the governor of a state has to more or less act on the aid and advice of the government expect in the case of discretion that could be exercised by the office.
The Delhi government claimed that the LG cannot govern Delhi, has no role in the affairs of the national capital. It is only the council of ministers, headed by the chief minister, which can govern, it said.
A five-judge constitution bench headed by Chief Justice Dipak Misra said that under Article 163, the governor has to act on the aid and advice of the council of ministers except in the case where he has to exercise his discretion.
The court is hearing a batch of pleas on who enjoys supremacy in governing the national capital, referred to in Article 239AA of the Constitution.
"The language of Article 163 is similar to Article 239AA subclause 4 but the only difference is that the Legislative Assembly cannot make laws with respect to entries 1, 2 and 18 in which the LG can exercise his discretion. Thus, the LG has more power than a governor of the state," a bench also comprising justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan said.
It said land, police and public orders fall in the domain of the Centre and the Delhi Assembly cannot make laws with regard to these subject.
Senior advocate Rajeev Dhawan, appearing for the Delhi government, said that Article 239AA and the GNCTD Act of 1991, made it clear that the LG is just a delegatee of the President and can only act on his own in case of an urgency.
"The LG cannot run Delhi. He has no role to run the affairs of Delhi. That role is assigned to the council of ministers headed by the chief minister. Nowhere in the Constitution, such power has been given to the LG," he said.
Dhawan questioned how can the LG say that this officer will stay in a particular department or the officer needs to be transferred to another department.
"Delhi does not have its own public service commission though it has power to establish one but still it has not done so. The officers posted in Delhi are from all-India cadres of the IAS, IPS and IRS and they listen to the directions of the LG," Dhawan said.
He said that the LG can interfere in the affairs of Delhi only in two cases -- if the state government crosses its powers or if Delhi is under some kind of a threat.
Dhawan cited the Jat agitation when lakhs of people from Rajasthan and other adjoining states poured in the national capital.
"The LG can't pick and choose from the wide canvas of Delhi's various allocations of business. If there is some disagreement between the council of ministers and the LG over some issue, then it has to be resolved through negotiations and if that too fails, then the President has to take a call," he said.
The senior lawyer further said that there were instances when same parties ruled at the Centre and in Delhi and at that time the simple request was enough to get the work done, but now different parties are at the helm and they are at loggerheads.
The AAP government said that the aid and advice of the council of ministers have some meaning and it is not limited since it is from the elected representatives of the people.
Dhawan said that land, public order and police are with the central government but it cannot be stated that the Delhi government has no say.
He cited the violence at Ramlila Maidan that took place during a protest led by yoga guru Ramdev against black money in 2011 and said in those cases when there is a threat, chaos and law and order problem, the LG can step in.
To this, the bench said that there cannot be any disagreement over the subjects like land, police or public orders which fall within the domain of the Centre and not the Assembly.
It said that allocation of the business rules does not confer absolute power to the government and they have to work through the provisos.
The apex court had yesterday said the Constitution provided restrictions on the legislative powers of the Union Territory of Delhi.
The AAP government had told the court that Parliament's power to override the legislative authority of the states was an "emergency" power.
The apex court had said that with regard to Delhi's legislative powers, the state and concurrent lists have been merged into one where both the state and Union have legislative powers.
Earlier, the apex court had raised a question whether the constitutional scheme on the division of executive powers between the Centre and the states can be made applicable to Delhi.
The court is hearing a batch of appeals filed by the AAP government challenging the Delhi High Court verdict holding that the LG was the administrative head of the national capital.