The Lt. Governor of Delhi appointed all the public prosecutors in Delhi riots cases whose names were submitted by the Delhi Police and rejected the State government’s list.
Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through 69th constitutional amendment by the Parliament.
- It provides the Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
- As per Article 239AA – Public Order, Police & Land in NCT of Delhi fall within the domain and control of the Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, insofar as any such matter is applicable to UTs, the Legislative Assembly shall have power to make laws for NCT of Delhi.
- Article 239AB provides that the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article. This provision resembles Art.356 (President’s Rule)
Supreme Court guidelines in Government of NCT of Delhi vs. Union of India (2018)
- The Constitution Bench of the Supreme Court said that the exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi.
- The Supreme Court affirmed that the Lt. Governor is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
- The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government.
- SC directed the Lt. Governor not to refer to the President normal administrative matters as that would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality.
- The President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.
- The Delhi government recommended names for public prosecutors for Delhi riots cases. As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government.
- The Lt. Governor referred it to the President stating that there is a difference of opinion between him and the government over this matter.
- The key question is whether the Lt. Governor can refer to a routine administrative matter such as the appointment of prosecutors to the President.
- Article 239AA (4) (proviso) says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision.
- In the meantime, if the Lt.Governor thinks that the matter is urgent, he can take immediate action on his own.The Union Government is not empowered to exercise executive authority on a matter which comes within the exclusive jurisdiction of the State government like the appointment of Prosecutors.
- The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4).
- The Court did not specify the matters which can be referred by the Lt. Governor to the President.
Ultimately the top court wants the Lt. Governor and the Council of Ministers to use in full the mechanism provided in the Government of NCT of Delhi Act and the Transaction of Business Rules to thrash out differences. When the Court declares the law and requires the constitutional authorities to follow it, they have to act in compliance and not in defiance.