Guest Post: Government of Delhi vs Union of India – III: The Executive Relationship

(After a summary of the issues and a post about the legislative relationship between Delhi and the Union of India, in this, the third post in his series about the ongoing hearings at the Supreme Court, Vasudevan Devadasan examines the heart of the dispute: the question of executive power.)

Coming to the crux of the matter between the elected government of Delhi and the Lt. Governor, this post examines the extent of the executive powers possessed by the Lt. Governor under the Constitution. Executive power in parliamentary government is a result of England’s rather unique history as a constitutional monarchy. While parliament is the law-making body, executive power is exercised by the cabinet, or the council of ministers – whose members, while being part of the legislature, also formulate and implement policy of the government in power. But because England never abolished its monarchy, there also existed a nominal executive, the Queen, in whose name all decisions of the government are taken. When the Indian Constitution was adopted, there obviously existed no equivalent to the English sovereign, but such a nominal executive was deemed necessary. Therefore, we have the President (for the central executive) and the Governor (for the States).

The Union Territories, however, depart from this model. Under Article 239(1), Union Territories are to be administered by the President (i.e., by the central government), through a delegate (the Lt. Governor). Article 239AA, however, provides something of both worlds: a Lt. Governor does exist, but – under Article 239AA(4) – so does a Council of Ministers, to “aid and advise” him in his functions. As counsel for Delhi argued – both in the High Court and, over the last few weeks, in the Supreme Court – the phrase “aid and advice” is a term of art and, under the Westminster system of government, is nothing more than a euphemism for the nominal head of the Executive being bound by that “aid and advice.” (this argument will be considered below)

The Delhi High Court concluded, however, that the Lt. Governor is not bound by the ‘aid and advice’ of the council of ministers, and that the ministers must secure the approval of the Lt. Governor on all decisions prior to implementation. In effect, this meant that several initiatives of the Delhi government were invalidated because they had not received the assent of the Lt. Governor. In the Supreme Court, the Delhi government has argued that this interpretation rendered the elected legislature and its council of ministers meaningless with respect to the governance of Delhi. The question then arises: do the Lt. Governor’s executive powers under Article 239AA allow him to overrule the decisions of the Delhi council of ministers that have the support of an elected legislature?

The ‘Westminster’ model of government that our Constitution follows (and I discuss this below), requires the council of ministers to be ‘collectively responsible’ to the elected legislature. To denude the council of ministers from possessing the executive power to govern Delhi would effectively prohibit them from fulfilling their obligation towards the legislature. Thus, the division of executive powers for Delhi must reconcile: (1) the collective responsibility of the Delhi Government towards the legislative assembly of Delhi, with (2) the unique powers granted to the Lt. Governor under Article 239AA.

The debate around executive powers in Delhi is centred around clause 4 of Article 239AA, which states:

Article 239AA (4): There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

Without jumping to conclusions as to whom has executive supremacy, let us first examine if it is plausible for the Lt. Governor (as the High Court suggested) to have an absolute monopoly on executive power. As executive power flows from legislative power, the conferment of legislative power on the territory of Delhi necessarily implies that the Constitution also confers some executive power. This is evidenced by the existence of a council of ministers, and the ‘Westminster’ model of governance.

The ‘Westminster’ model and collective responsibility

While the ‘Westminster’ model of government may be a slightly nebulous concept towards its fringes, it certainly contemplates two things: a nominal executive through whom executive power is exercised and an executive whose primary function is the formulation and implementation of government policy. Crucially, this latter function is premised on the confidence of the legislative branch in the executive to formulate and implement policy. Thus, in both England and India, the executive is collectively responsible, and thus controlled by the legislature. One could go so far as to say that executive power is permitted because it has the ‘tacit support’ of the majority of the legislature. The accountability of the executive is assessed on a daily basis through debates, questions, and motions on the house floor, including ultimately, votes of no-confidence.

Without getting into the areas of permissible discretion that the President, Governor, and Lt. Governor may have (this is discussed below), a consequence of this collective responsibility is that the executive functions exercised by these functionaries is done on the ‘aid and advice’ of the council of ministers. In Shamsher Singh the supreme court clarified that: because the legislature has the exclusive power to make laws, and because the council of ministers has the support of the legislature, the ‘aid and advice’ of the ministers is legally binding on the nominal executive. For example, under Article 74 the President is bound to act upon the advice of the union council of ministers. While the Governor and the Lt. Governor appear to have been given discretion to act otherwise, the text of Article 163 (‘Council of Ministers to aid and advice Governor’) and Article 239AA (4) (above) also support the understanding in Shamsher Singh precisely by making special note of the discretionary powers. If the Governor and Lt. Governor could disregard the advice of the ministers at any point, there would be no need to couch instances where they can as an exception to a general rule. To put the point another way: the words “except in so far as he is, by or under any law, required to act in his discretion”, which conclude Article 239AA(4), would make no sense if there were areas where the Lt Governor did not have discretion – i.e., where he was bound by the aid and advice of the Concil of Ministers.

Aid and advice and the proviso to cl. 4

The dispute, however, is caused by the proviso that comes immediately after. Specifically, the proviso to Article 239AA(4) authorises the Lt. Governor to differ on “any matter” with the Concil of Ministers, and refer it to the President for decision. Such a power is not given to either the President with respect to the central government, nor to the Governors with respect to the State governments. Thus, the question arises as to whom really has executive power in Delhi, the council of ministers (the Delhi Government) or the Lt. Governor (a Presidential – that is, a Central Government – appointee).

What is needed is a balancing between the collective responsibility owed to the legislative assembly of Delhi, and the special powers given to the Lt. Governor. Firstly, it is apparent that where the legislative assembly doesn’t have legislative powers, the Delhi government (executive) can’t either; in such cases, the Lt. Governor will have absolute executive powers. However, on matters that are intra vires the legislative competence of the legislature, two questions arise: do the Lt. Governor’s discretionary powers allow him to disregard the ‘aid and advice’ of the council of ministers, and does the proviso to cl. 4 of Article 239AA require the Delhi government to secure the Lt. Governor’s approval on all matters?

As noted above, a textual reading of Article 239AA (4) and the principle of collective responsibility support the understanding that ordinarily the Lt. Governor would be bound by the ‘aid and advice’ of council of ministers. The first exception to this is where a statute requires her to exercise discretion. Section 41 of the GNCTD specifically provides a list of situations where the Lt. Governor must exercise her discretion, and is thus not bound by the ‘aid and advice’ of the ministers. Section 41 in facts supports the interpretation above, restricting the discretion of the Lt. Governor to ‘matters outside the legislative competence of the Delhi assembly’, matters that concern the office of the Lt. Governor and its judicial or quasi-judicial functions. Thus, despite the Constitution permitting the Lt. Governor to disregard the ‘aid and advice’ of the council of ministers where provided for by ‘statute’, this does not result in the advice being non-binding in all other instances.

The proviso to cl. 4 of Article 239AA allows the Lt. Governor, in the case of a ‘difference of opinion’ to refer such a dispute to the President. The High Court concluded that the fact that a difference of opinion could exist meant that the ‘aid and advice’ was not binding. This interpretation effectively treats the proviso as the rule and excludes the actual text of cl. 4 proper. As noted above, the use of the words “except in so far as” indicates that the general rule of cl. 4 proper is that the Lt. Governor is bound, and this is supported by the rule of collective responsibility.

However, the proviso clearly envisions a difference of opinion where the Lt. Governor is not bound by the ‘aid and advice’ of the ministers and thus carries out a distinct constitutional function. In interpreting this instance of ‘co-extensive’ executive power it is instructive to examine the administrative relationship between the union and its federal sub-units. Article 256 states that, “The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.” Because the union’s laws apply within federal sub-units as well, the union can require that a sub-unit’s executive powers are used to ensure that union laws are enforced within the sub-unit. Thus, to ensure the smooth function of a federal government, the union executive has an interest with respect to union, or central laws promulgated by parliament.

Applying this understanding to the proviso of Article 239AA (4), where the ‘aid and advice’ of the ministers conflicts with the union’s interest with respect to laws passed by parliament, there would be a ‘difference of opinion’. It should be noted that in the case of Delhi, the union’s interest is far more intricate than in an ordinary State. Parliament has concurrent legislative power with respect to Delhi, and has exclusive power on matters relating to ‘public order’, ‘police’, and ‘land’ (entries 1, 2, and 18). Therefore, for example where the Delhi government attempted to control the police, where parliament has supremacy, the proviso would be applicable.

There also exist extraordinary circumstances where even the President or a Governor would not be bound by the ‘aid and advice’ of the council of ministers. Justice Krishna Iyer pointed out, for example, that where the government had lost the majority of the house but was refusing to quit, the Chief Executive would be obligated to disregard the advice of the ministers. Similarly, in the context of a ‘failure of constitutional machinery’ Governor would arguably be correct to disregard the advice of the ministers, as they might themselves be the reason for the failure. In the case of the President or the Governor, they themselves are the final arbiter as to when such a situation exists by virtue of the high constitutional office that they occupy. The administration of Delhi ultimately vests in the President, and if such extraordinary circumstances were to arise, the Lt. Governor would arguably be obligated to refer the matter to the President under the proviso to Article 239AA (4). Thus, the proviso could be seen as codifying a crucial residuary power of the Lt. Governor to ‘prevent the subversion of democracy’ by a government. As was noted by Justice Chandrachud in hearing the case last week, when the Lt. Governor refers a matter to the President, he not acting as the executive head of Delhi, but rather as an agent of the President. Thus, independent of the union’s interest in enforcing its laws, if a ‘difference of opinion’ of the kind described above arose, the proviso to cl. 4 might be applicable.

The second conclusion reached by the High Court based on the proviso was that to allow the Lt. Governor to refer the matter, no action could be taken unless the Lt. Governor has first approved it. Just like the President with respect to parliament, the Lt. Governor is entitled to send for all decisions passed by the council of ministers. This is clearly intended to operationalise the duty of the Lt. Governor under the proviso, to protect the union’s interests and the Constitution in Delhi. However, the consent of the Lt. Governor prior to implementation of a decision is unnecessary to operationalise the duty in the proviso. It is feasible that the government continues to function, and the Lt. Government notices a particular proposal that is likely to cause controversy, he may attempt to caution the government, and if need be refer the matter under the proviso.

The practice is one that stems from England where the Sovereign has the right to see decisions of the cabinet in order to advise or warn the council of ministers. Jennings’ note on English practice is rather instructive here: “Though George V insisted on seeing leaders of the opposition in 1910, he did so with the Prime Minister’s consent, and sought information, not assistance in defeating the government.” Unlike the English Sovereign, the President and the Lt. Governor both have strong party affiliations. This duty is thus one executed, at least at certain times, in a political atmosphere. Thus, while the Lt. Governor certainly has a right to see all proposals, he would arguably not be permitted to use this right to defeat the functioning of a government. To hold all government proposals ransom to the consent of the Lt. Governor would arguably be defeating the functioning of the government.

Conclusion

Both the council of ministers and the Lt. Governor are indirectly elected but hold the tacit support of a legislature. While the Lt. Governor’s executive power flows from both parliament and Article 239AA, it cannot be used to neutralise the Delhi government. The fact that the council of ministers is collectively responsible to the elected legislature requires that it also be given sufficient executive power to ensure smooth governance. However, the Lt. Governor is not a mere rubber stamp authority, he holds a distinct constitutional office that not only administers Delhi on the issues of public order, police, and land, and ensures the union’s interests within Delhi, but also functions as a crucial check on the powers of the Delhi government.

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