The Delhi government is at best meant to take care of the "daily utilities" of the National Capital. The real power to administrate the National Capital is vested with the President and the Union of India, the Centre opened its innings on Tuesday before a Supreme Court Constitution Bench.
The President and the Union of India, and not the local government, is vested with the power to govern Delhi – “a centrally-administered area with special features”, Additional Solicitor General Maninder Singh submitted before the five-judge Bench led by Chief Justice of India Dipak Misra.
The Centre and the Delhi government is locked in a turf war over who has administrative power over the National Capital and whether the LG can take unilateral decisions without being bound by the aid and advice of the elected government of Delhi.
Mr. Singh said Delhi governemnt wants “uncontrolled, vertically divided executive power”. “But when the power is not vested in you, how can you exercise it? To spend money, you have to have some in your pocket,” the law officer submitted.
Mr. Singh said the “special status” given to Delhi is as regards the other Union Territories. This does not elevate Delhi to the status of a 'State'. The Constitution is specific about provisions concerning the States, and Delhi does not figure in any of these provisions. He argued that the Constitution is silent about giving co-extensive executive and legislative powers to the Delhi government. The court should not interpret something which is not there in the Constitution.
Mr. Singh said the Constitution recognises that the Union has so much at stake in the affairs of the National Capital and continuous control has to be maintained in almost every subject of governance and adminsitration. The law officer argued that Constitution provides “no executive, exclusive power” to the Delhi government.
Mr. Singh argued that Delhi cannot say “I am not a State but give me the privileges of a State”.
As an example that Delhi is not a State but a Union Territory under the control of the President and the Centre, Mr. Singh referred to Article 3 of the Constitution. The Article mandates that in the formation of new States and alteration of areas, boundaries or names of existing States, a referendum has to be made to the State legislature concerned. However, in case of a Union Territory, no such referendum is made.
In reference to the Delhi government's request for a “harmonious construction” between the executive and legislative powers of Delhi and the Centre, as envisaged under Article 239AA (4) and its proviso, Mr. Singh quoted the noted jurist H.M. Seervai, saying “don't create disharmony and then talk about harmony”.
Mr. Singh rejected Delhi government's description of the LG as a “viceroy” and a “suprema lex”.
Earlier in the day, senior advocate Shekhar Naphade wrapped up a nine-day marathon session of arguments for the Delhi government said the Lieutenant Governor can only use his discretion as per a law, the rest he has to follow the aid and advice of the Delhi Council of Ministers.
“If the executive function of the Union over Delhi is retained, it would have been specifically provided for in the Constitution. We are reading into the Constitution a power that does not exist. The Constitution is silent. Therefore, I have the executive power. The LG holds a much subordinate position compared to the State Governor,” Mr. Naphade argued in the morning.
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12 December 2017