Source:

https://indianexpress.com/article/opinion/columns/arvind-kejriwal-versus-anil-baijal-delhi-governor-responsibility-without-power-4962304/

Model Answer:

Introduction:

• The 69th constitutional amendment created Article 239AA and called for the formation of an assembly and a council of ministers in the Union Territory of Delhi. Powers were transferred and the assembly was conferred with executive and legislative powers on all state subjects barring three – law and order, police and land.

Main Body:

• Article 239 AA states that the members of legislative assembly shall be elected by the people through direct election from territorial constituencies in the National Capital Territory. However, in a democracy, the directly elected government has the responsibility towards people to address all their grievances.
• Moreover, the provision of Article 239AA does not empower the state government to function independently and gives hands to the centre in matters of appointment of higher administrative officials. This, in simple words, mean that the appointment, transfer and posting of any officer working in the national capital territory of Delhi rests with the central government and is delegated to the LG. Further, LG could disagree with many decisions of elected government and refer them to the president, which means the central government.
• As per Article 239 AB (a), the council of ministers is responsible for Delhi’s administration and if it fails in its function, it will be removed by the president.
• Further, in order to frame any law by Delhi Legislative Assembly except entries related to public order, police and land in schedule VII will have to take prior permission from LG. This undermines the executive powers of elected government and democracy.
• For example, the LG has appointed Chief Secretary without any consultation from council of ministers. This goes against the set principles of democracy and elected executives. As per the SC rulings, the appointment and removal of officers should have to be in conformity with executives as they are the lynchpin in the administration. There should be rapport and complete understandings between officers and office of Chief Minister.

The current status and Supreme Court’s Ruling:

• By the Supreme Court judgement as of July 2018, the Lt. Governor has no independent authority to take decisions except in matters under Article 239 or matters outside the purview of the government.
• A five-judge Constitutional Bench observed that except for issues of public order, police and land, the Lt. Governor is bound by the ‘aid and advice of the Delhi’s elected Government’ which has the public mandate. The SC also noted that there is no room for anarchy or absolutism in a democracy.
• The SC also noted that Every “trivial difference of opinion” between the LG and the NCT government cannot be referred to the President for a decision. The issues referred should be of substantive or national importance. In this regard, the CJI interpreted the phrase “any matter” in the proviso to Article 239AA(4) as not “every matter.”

Conclusion:

• Democracy is for the people, by the people and of the people, hence, in order to justify the democratic principles of elected government, the Delhi Government should be given the power to legislate in independent manner under the mandate of constitution on every subjects of state list at par with the other states.
• Delhi should also be given the complete statehood by bringing necessary amendment to the constitution. This will justify the responsibility of elected government as well as to the democratic principles enshrined in our Constitution.