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Delhi is different from other states, govt obliged to apprise LG, says SC

A five-judge Constitution bench headed by Chief Justice Dipak Misra referred to provisions of the Constitution

Press Trust of India  |  New Delhi 

Tripods of television crew stand in front of the Indian Supreme Court building in New Delhi

The position of is different from other states and the elected is under an obligation to apprise the Lieutenant Governor about policy decisions, the Supreme said today.

While hearing pleas on who enjoyed supremacy in governing the capital, a five-judge Constitution bench headed by Chief Justice referred to provisions of the Constitution, the of Capital Territory of Act and the of Business of the of Capital Territory of Rules and said there was "some kind of wall" which distinguished from others.

"Unlike other states, if you (government) take a policy decision, then you have to intimate the Lieutenant Governor (LG). You are bound to intimate the LG, but you cannot say that the has to concur. This is the range," the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said.

On the issue of concurrence, the top said there was no need for "fundamental concurrence" of in every aspect and there should be "real good reason" in case of difference of opinion over the decision of the

It said a balance needed to be maintained between the powers of the and the Chief Minister and the council of ministers. Every file is not required to be placed before the LG, but only those which are mentioned in the of Business rules.

The bench, during the day-long hearing, also referred to provision 23 of the of Business rules and said in certain cases like in matters of peace and tranquility of the capital, the issue "shall essentially be submitted to the through the Chief Secretary and the Chief Minister before issuing any orders thereon".

Senior advocate Gopal Subramanium, arguing for AAP government, said "as a responsible government, we cannot contest it".

He, however, said the constitutional schemes be given the widest interpretation and they cannot be interpreted to defeat what is intrinsic to the Preamble.

On the issue of mandatory "aid and advice" of the council of ministers to the LG, the senior lawyer said it was "not a permission to interfere".

Referring to Article 239AA which deals with Delhi, he said supremacy of Parliament on law-making was not being questioned, but theory of separation of powers was also a key to participatory democracy, which has to be considered.

The said in case of difference of opinion with regard to a law made by assembly, the has the power to refer it to the President for a decision and sub-article 4 of Article 239AA provides that pending decision, the can pass an interim order if necessary.

The counsel for said the elected has powers to undertake executive functions.

"It is not permissible that the Lieutenant Governor use residuary powers to take primacy and, moreover, the overriding powers cannot be vested with the LG," Subramanium said.

As far as legislative powers of are concerned there was no issue with regard to supremacy of Parliament which can make laws on subjects specified in state and the concurrent list of the Constitution, the bench said.

Subramanium alleged that the demands files and issues directive to all officers to follow his instructions, rather than those of the elected Chief Minister.

"Then what is the purpose of having a CM? You can't have two executive dice for ruling one state," he said.

The bench observed that constitutional provisions suggest that the has power in all such subjects which are not in the purview of state legislature.

"There cannot be problem with this but there cannot be a scheme of things to circumvent everything. Proviso provides for harmonisation of powers to enable governance by democratically elected government," Subramanium said.

He said the calls for files and overrides decisions of the without informing the minister of the concerned department. "There is need to act in harmony not to circumvent the decision of government," he added.

To this, the bench said it was never contemplated by the Constitution makers that one man's concurrence was needed for every aspect though over-riding powers were given to

Subramnium asked in matters relating purely to welfare measures like opening of primary health centres or a school or a night shelter, does the need the LG's concurrence.

"IAS-IPS officers are from All India Services. Does that mean they won't listen to the CM and council of ministers," he said, adding transfer orders are passed by

"Cabinet does not need concurrence of every time. Power to call for any file by is residuary and needs to be exercised in exceptional cases," he said.

He cited the 2001 Parliament attack case and said if the action of endangered an institution of importance, then in such case the can take a call.

The arguments remained inconclusive and the senior advocate will resume them tomorrow.

First Published: Tue, November 07 2017. 20:21 IST