The Kejriwal government of Delhi has filed a petition in the Supreme Court challenging the decision of the National Green Tribunal (NGT) to appoint Lieutenant Governor Vinay Kumar Saxena as the chairman of the high-level committee on Yamuna. Requesting to set aside the NGT order, the Delhi government has said that this order violates the constitutional system of governance in Delhi as well as the 2018 and 2023 orders of the Constitution Bench of the Supreme Court. Through its order dated 09 January 2023, the NGT has made Upra its chairman while constituting this committee consisting of various authorities in Delhi to resolve the issue of Yamuna river pollution. On this the Delhi Government says that the Lt. Governor is only the ceremonial head of Delhi. The Chief Executive Officer of the Jal Board, the Vice-Chairman of the Delhi Development Authority, the Union Ministry of Agriculture, the Director General of Forests or the Ministry of Environment, Forest and Climate Change, a representative from the Ministry of Jal Shakti, the Director General of the National Mission for Clean Ganga and the Central Pollution Control Board (CPCB). Chairman and a representative of the Delhi government.
Delhi government’s petition states that the Delhi government should consider the need for inter-departmental coordination to remove pollution of the Yamuna and implement remedial measures. Accepts, but takes strong objection to the executive powers given to LG through the NGT order. The powers given to the LG specifically encroach upon the jurisdiction of the elected government of Delhi.
The Delhi government argued that as per the administrative set up in Delhi and the land, as per the provisions of Article 239AA of the Constitution, Except in matters relating to public order and police, the LG acts as the titular head and exercises the powers conferred by the constitution. Emphasizing the importance of an integrated approach, the Delhi government has emphasized that the language used in the NGT order bypasses the elected government. It has been argued that executive powers have been conferred on an authority which lacks the constitutional right to hold those powers and it also undermines the jurisdiction of the elected government.
It has been argued in the petition that giving executive powers to an administrative person who does not have a constitutional mandate actually undermines the jurisdiction of the government elected by the people.
Article 239AA of the Constitution As per the Act, the Lieutenant Governor is bound to act solely on the aid and advice of the Council of Ministers headed by the Chief Minister. It has been a constitutional principle for the last 50 years that the powers vested in a nominated and unelected head of state are to be exercised only by the Council of Ministers. "help and advice"
The Government of Delhi also emphasized that the Constitution Bench of the Supreme Court in its judgment in State (NCT of Delhi) v. Union of India (2018) 8 SCC 501 It was clarified in the judgment that the elected government of Delhi has the exclusive right of executive powers on all the subjects included in the state and concurrent list except land, police and public order. Para 284.17 of the order of the Supreme Court dated July 4, 2018 states that the provisions of Article 239-AA(4) "help and advice" should be taken to mean that the LG of NCT of Delhi is bound by the aid and advice of the Council of Ministers.
This position holds true until the Lieutenant Governor under clause (4) of Article 239-AA do not exercise their power under the provision. To the Lieutenant Governor on any subject The power to take independent decisions has not been delegated. He has to either act on the aid and advice of the Council of Ministers or he is bound to implement the decision taken by him on a reference being made to the President.
475.20 of the same decision said It is said that in the cabinet form of government, the basic power to take decisions rests with the Council of Ministers, whose head is the Chief Minister. The aid and advice provision given in the original 38 part of Article 239-AA(4) gives recognition to this principle. When the Lieutenant Governor acts on the aid and advice of the Council of Ministers, it assumes that the actual decision-making authority in a democratic form of government is vested in the executive. Even when the Lieutenant Governor makes a reference to the President under the provision that the decision taken by the President has to be followed, the Lieutenant Governor has no independent authority to take the decision.
Furthermore A five-judge Constitution Bench in Civil Appeal 2357 of 2017 (Service Decision) upheld this position in its order dated May 11, 2023. In light of this, Article 239AA and the 2018 Constitution Bench judgment of the Supreme Court reiterate that the LG is bound to act with the aid and advice of the Council of Ministers in matters falling within the legislative purview of Delhi.
In its appeal, the Delhi government has argued that the remedial measures proposed by the NGT such as using treated water for agricultural, horticultural or industrial purposes, preventing waste discharge and dumping, protecting flood plain areas, dredging flows Maintenance, tree plantation and desilting of drains etc require budget allocation which is approved by the assembly. Therefore, the role of the elected government is necessary in overseeing these measures. Along with this, it has been said that the elected government is committed to making Yamuna a clean river by making it pollution free and allocating necessary funds for it. While the current scheme mentioned in the NGT order constitutes a committee headed by an unelected person bypassing the elected and accountable government of Delhi. However, an inter-agency committee is needed for its coordination. Therefore it should be looked after by the elected head of the government i.e. the Chief Minister.
Finally the Delhi government in the original application no. Requested to cancel the final order.