Recently, the NCT government and the Lieutenant Governor (LG) of Delhi issued two parallel and opposite orders on the admission of ‘non-residents’ to hospitals situated in the capital for treating COVID-19 patients.

Some politicians from the NCT government objected to the LG's order as an attack on democracy and federalism. However, the NCT government readily agreed to implement the order passed by the LG without any further escalation.

In this background, we discuss the evolving mandate of the LG under the Disaster Management Act from the lens of his constitutional position vis-à-vis the NCT government as enunciated by the Supreme Court in Government of NCT of Delhi v. Union of India & Anr.

We argue that under the Disaster Management Act, the LG shuns the titular hat and dons the hat of an administrator. We do this by analyzing the design of the Act to show that the LG enjoys primacy under the law and his powers thereunder broadly align with the roles demarcated by the Supreme Court.

Recall that the key issue before the Supreme Court in the constitutional battle between the Union and NCT governments was about the relationship between an elected government and the LG under Article 239AA(4) of the Constitution. Dealing with this question, the Court held that like the Governor, the LG is bound by the aid and advice of the Council of Ministers, save in those cases where he has discretionary powers.

However, the Court punctuated these observations with a caveat: it was held that the LG is not bound by the decision of the Council of Ministers, if he decides to differ with them in terms of the proviso to Article 239AA(4). However, there were certain abiding principles, the Court added, that should be observed by the LG when he decides to differ with the Council of Ministers.

According to the Court, the intervention of the LG should not be a norm and be exercised as an exception bearing in mind the principles of constitutional objectivity, constitutional morality, constitutional governance and the constitutional trust reposed in him as an administrator of the Union Territory.

In this regard, Justice Dipak Misra’s opinion comes close to suggesting, and rightly so, that elected representatives might sometimes pander to the popular will that does not comport with the Constitution. In case of Delhi, these considerations might assume dangerous proportions, as being the National Capital, it has to serve the “interests of the capital” apart from attending to local aspirations and ambitions.

Hence, when elected governments are motivated by a desire to assuage their electoral bank and contradict the interests of the capital, the intervention of the LG becomes warranted.

The observations made in the concurring opinion filed by Justice DY Chandrachud also resonate with Justice Misra’s understanding of the power conferred on the LG under the proviso in rather more explicit terms. In his opinion, Justice Chandrachud notes that the proviso to Article 239AA(4) manifests those aspects of governance that implicate national interests of the Union or have a bearing on the status of the National Capital.

While declining to exhaustively lay down the situations that might justify the exercise of powers conferred by the proviso, he cites some contingencies that may fall within its ambit. They include situations in which executive actions of the NCT government interfere with the executive power of the Union, when compliance with the provisions of the Constitution or any law made by the Parliament has become necessary, or when financial concerns of the Union government are affected.

There is an element of inevitability in the governance of the National Capital where local aspirations might come in conflict with important national considerations. To deal with the inevitability, the office of the LG has been given a unique power under the proviso to counterbalance the popular will expressed through the Council of Ministers. By doing so, the Constitution gives way to a more inclusive and plural desiderata of democratic governance for the National Capital, where national interests have equal protection.

The Disaster Management Act, 2005 and the theory of Vital National Interest

The Disaster Management Act is an admirable model of governance formulated on the concept of cooperative federalism. The law provides an integrated framework for co-ordinating a response between the Union and the states in fighting a disaster.

As states play a major role in disaster management by becoming the face of the response force on the ground, broad powers have been conferred on the local statutory bodies working under the administrative control of the state government to effectively manage a disaster. This can be seen from the autonomy given to the state in the compositional and functional aspects of the local statutory bodies.

For instance, the Chief Minister of the state is the ex-officio Chairperson of the State Disaster Management Authority (SDMA) established under Section 14 of the Act. The SDMA is the highest statutory body in the state overseeing the disaster management operations.

The authority of the Chief Minister as Chairperson of SDMA is entrenched by a default provision - Section 14(2) - that gives him the sole prerogative to nominate eight out of the total nine members to the SDMA, unless the state government decides to frame rules for their appointment.

Further, under Section 18(3), the Chairperson again becomes the sole repository of the powers given to SDMA in case of an emergent situation. The only limitation on the emergency powers is the post facto ratification by other members of the SDMA. Therefore, the scope for undertaking measures single-handedly by dint of the powers vested in the Chairperson under the Act is considerably wide.

However, for Delhi, the situation is sharply opposite. The second proviso to Section 14 makes the LG, and not the Chief Minister, the Chairperson of the SDMA. This exception for Delhi gives the LG power to control the composition of SDMA and take emergency measures under Section 18(3).

A special structure for Delhi as envisaged by the Act brings the proviso to Article 239AA(4) readily to our mind. This is because the powers of the LG under the Act, except for the structural difference, bears some similarities with his powers under Article 239AA. In this context, it is pointed out that the two powers are very similar, as they have the same purpose.

However, before we come to the similarities, there are some structural differences that should not be missed. When the LG invokes his powers under the proviso to Article 239AA(4), he is acting like an interventionist. His power is the power to differ with the Council of Ministers that cannot be invoked suo motu i.e. in the absence of any decision by the Council of Ministers.

On the other hand, under the Act, the LG acts like an original authority and has the power to unilaterally take emergency measures in the face of a disaster without waiting for the approval of the Council of Ministers or any other body. To that extent, the LG enjoys greater powers than he does under the proviso to Article 239AA(4).

That is not to say that the LG has no power under Article 239AA to take interim emergent measures. In fact, Article 239AA explicitly empowers him to take emergent steps after he has differed with the Council of Ministers on any matter and the same is pending resolution before the President. However, before he does that, he has to make an attempt to resolve the impasse by discussing and deliberating the issue with the Council of Ministers. These procedural limitations imposed upon the powers of the LG under Article 239AA, though very important, are absent in the Act, where the powers of the LG are unhindered (except for the post facto ratification).

This brings us to the purpose behind the two powers and whether they are the same. As discussed earlier, in the NCT Case, the Supreme Court ruled that the LG could differ with the Council of Ministers in case vital national interests are put in jeopardy by the actions of the Council of Ministers and refer the matter to the President. In a way, the Court gave primacy to the LG over the Council of Ministers whenever these interests are implicated.

When this power under Article 239AA is compared with the position under the Act, it would seem that there is an implicit legislative presumption in the law that a disaster in Delhi is a matter of vital national interest. This notion is visible from the fact that the LG has been given primacy over the Chief Minister by making him the Chairperson of the SDMA. When compared with other states where the Chairperson is the Chief Minster, the notion of the primacy of the LG in a situation of disaster affecting the National Capital becomes stronger, leaving no doubt that Parliament has mirrored the concept that underlies the proviso to Article 239AA in the Disaster Management Act.

It cannot be gainsaid that disasters in Delhi, by their very nature, can impact not just the National Capital but also the country as a whole. The spread of COVID-19 in Delhi has not only dampened economic growth and triggered a slowdown, but has also strained the healthcare infrastructure that benefitted many people from every part of the country in normal circumstances. With the rising number of cases, neighbouring states have often been forced to seal their borders with Delhi.

When the above factors are kept in mind, it would become clear that for Delhi, the decisions are for the LG to take, because a disaster that affects Delhi is a matter of vital national concern. The Parliament envisaged the same possibly keeping in mind Delhi’s nature as the National Capital and the primary role of the Union in its disaster planning and response.

Therefore, when the LG decided to overrule the NCT government’s decision to bar non-residents from obtaining treatment in Delhi hospitals, the principle of representative government naturally took a backseat, as it does when the LG intervenes under the proviso to Article 239AA.

We finally conclude by making the obvious point that the order passed by the NCT government was an unconscionable violation of fundamental rights such as right of equal access to healthcare and right to health. The NCT government should do well to respect these statesman-like principles enunciated in the NCT of Delhi Case in making future decisions instead of behaving like a demagogue in the midst of a national crisis.

Sarthak Raizada is an Advocate practising before the Supreme Court of India. Shivam Singhania is a law student at National University of Juridical Sciences, Kolkata.