The Supreme Court judgement on the powers of the Delhi Lieutenant Governor proceeds on the lines of the wording of the Constitution itself regarding Delhi—a union territory but given special status by having a legislative assembly. What was in contention in today’s judgement was Clause 4 of Article 239AA of the Constitution.

Article 239AA(4) says: “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 to 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.”

So the whole issue before the court was whether, under 239AA and its proviso, the LG can refuse to act on the basis of the aid and advice of the state government. The Supreme Court judgement says – yes. If he differs with the aid and advice of the state government, it is not incumbent or necessary for him to act on it. In such a case, he can refer the matter to the President, and will be bound by what the President says.

However, the court said this doesn’t mean he can—or should—differ on each and every small or petty matter, and he should facilitate and not obstruct governance. It needs to be an important or crucial matter only. However, the court hasn’t defined what it means by “important” or “crucial” matters. So basically, in all important matters where the view of the LG is different from the view of the state government, he can refer the matter to the President. This means the central government—and its views or decisions—will prevail.

When it comes down to the crunch, the judgement essentially goes by the letter of the Constitution under 239AA and the proviso to that, which means the final word on all important matters is still with the central government. The situation remains the same. On any important matter, the LG and so the central government can always overrule the state government.

While there is some rhetoric in favour of the state government, the final wording or conclusions of the judgement is in accordance with the letter of 239AA proviso, giving overriding power to the Centre on any matter in which the LG disagrees with the state government. The LG is bound either by the views of the state government, or the views of the central government.

There was a lecture (by the Supreme Court) on democratic and constitutional morality—saying the LG should not be obstructionist—but that lecture doesn’t mean much operationally. Because operationally, where he disagrees on any important matter, he need not act on the advice of the state government, and instead refer the matter to the President and the Centre.

Also, there is nothing in the judgement which suggests that the services will come under the state government, because these are officers belonging to the Union cadre, UT cadre, and so on. Therefore, their disciplinary control, as well as their transfers and postings, is essentially vested with the central government.

So it cannot be said that today’s verdict has reversed the Delhi High Court’s August 2016 decision. The only alteration—if one can even call it that—made by the Supreme Court is that the difference of opinion by the LG can be on important and crucial matters only, not routine ones. Power of transfers and positions continue to be vested with the central government. The problem is in the way 239AA(4) is worded. If the LG wants to obstruct issues—like education, mohalla clinics—he can use the proviso which is left intact.

I don’t think there is a reason for Kejriwal to celebrate, because it does not change the power imbalance. They could approach the Supreme Court for similar power tussles, saying this matter has been referred to the President even though it is not a “crucial” one. Future legal battles are possible.

The administrative impasse in Delhi will continue.

Unfortunately, the behaviour of the state government has itself detracted from the logic of giving full powers of full statehood to Delhi. The Kejriwal government acted in a manner that itself weakened the case. Otherwise, there’s a good case for statehood to Delhi, and the removal of the proviso from 239AA will do that job.

As told to Amit Bhardwaj, transcribed by Akshay Razdan.