Context: Recently, 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.

• The Lt. Governor referred the issue under proviso to Article 239AA (4) to the President stating that there is a difference of opinion between him and the government over this matter.
• In the meantime, the Lt. Governor appointed all the prosecutors whose names were submitted by the Delhi Police and thus the State government’s list was rejected.
• The article argues that the act of the Lt. Governor to refer to the President the issue of appointment of prosecutors has not been in consonance with the principles enunciated in the Supreme Court’s 2018 ruling.

Issues involved

• Supreme Court guidelines in Government of NCT of Delhi vs. Union of India (2018): 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.
• SC clarified 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.
• Faultline: the Court did not specify the matters which can be referred by the Lt. Governor to the President in the event of a difference of opinion between the Lt. Governor and the State government.
• For State Government: SC said, Delhi is a special category Union Territory and lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.

About Articles 239AA

• Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment by the Parliament.
• It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly. Delhi was named as ‘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 Central Government which shall have the power to make laws on these matters. For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
• As per Article 239AA (4), 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.

Government of NCT of Delhi vs. Union of India (2018)

• The Constitution Bench of the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) dealt with the issue of jurisdictional conflicts between the government of NCT and the Lieutenant Governor (representative of the Union Government).
• The Supreme Court was called upon to determine the extent of powers of the Lieutenant Governor of Delhi.
• The constitutional bench made the following observations:

Representative government for Delhi

• Based on the argument that if the elected Government of Delhi could not usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi, it would render the democratic and representative form of government ineffective in Delhi, the SC ruled that the Lt. Governor is bound to act on the aid and advice of the Council of Ministers except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.

Executive power with states

• The Court had held that though the Parliament can legislate for Delhi on any matter in the State List and the Concurrent List (Article 239AA (3)(a)), the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State Government headed by the Chief Minister (Article 239AA (4)).
• It held that the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.

Special status of Delhi

• The judgment also noted that Delhi being a special category Union Territory, there is the need to ensure harmonious functioning of the Delhi government and the Lt. Governor.

Powers of the Lt. Governor

• In case of a difference of opinion between the Lt. Governor and the State government, the Governor can refer a decision taken by the Council of Ministers to the President.
• The Supreme Court had observed that the powers conferred on the Lt. Governor to refer any matter to the President under the provision of the Article 239AA (4) did not mean every matter, and stated that such power should be used sparingly keeping in mind the standards of constitutional trust and morality, the principles of collaborative federalism and the concept of constitutional balance.
• The President is the highest constitutional authority and his decision should be sought only on constitutionally important issues.