Though the constitutional and legal position on Delhi State has been explained, the article, “More constitutional than political” (May 23), has overlooked the impugned provisions of Article 239AA and the Transaction of Business Rules, 1993. Article 239AA(3)(b) emphatically affirms the status of Delhi as a Union Territory and of any claim contrary to this being a clear violation of the constitutional position as it stands today.
Also, the Transaction of Business Rules, 1993, provides that the appointment of the State Chief Secretary, the Commissioner of Police, Secretary (Land) and Secretary (Home) to the Govt. of NCT of Delhi shall be made by the Government of India. Keeping in view Article 13(3)(a), wherein under the Constitution, “law” has been defined to include “Rules, Regulations and Notifications”, the Transaction of Business Rules, 1993 and the Gazette Notification, dated May 23, 2015 are equally “law” for the purposes of Proviso to Article 239AA(4), which has been overlooked.
It is incorrect to say that “Delhi is neither a State nor a Union Territory”, as Schedule 1 of the Constitution unequivocally states it to be a Union Territory. As a better way of resolving this dispute, the Delhi Chief Minister should have approached the government by seeking to amend the previous notification aimed at better cooperation between the governments.
Arjun Sharma,New Delhi
Parliament holds primacy over the Delhi legislature in making laws as in Article 239AA(3)(b)-(c). Second, in the case of a difference of opinion between the Lieutenant Governor and Ministers on any matter, the Lieutenant Governor shall refer it to the President for a decision and act according to the decision given thereon. Pending such a decision, it shall be competent for the LG to take action or to give such direction in the matter as he deems necessary (Article 239AA(4), Proviso). Also, the proviso to Article 239AA(4) points out that the “advice” of ministers is not “binding” upon the Lieutenant Governor.
Satyam Choudhary,New Delhi
The article should have mentioned the proviso to Article 239AA(4). Further, Shamsher Singh was decided in the context of the powers of the President under Article 74 and the Governor under Article 163. Both Articles 74 and 163 contain no such proviso. The only other statute that contains such a similar proviso is the Government of Union Territories Act, 1963 (Section 44). The Supreme Court, in Devji Vallabhbhai Tandel v Administrator of Goa (1982) held that the presence of such a proviso would leave the ratio in Shamsher Singh inapplicable and that the Administrator’s powers (in this case, the Lieutenant Governor’s) are different from that of the President or Governor. Clearly, Devji Vallabhbhai ’s case holds the field. Moreover, an interpretation that “aid and advice” would be binding in all situations would leave the proviso to Article 239AA(4) meaningless, violating the interpretational rule against ‘surplusage’ — that the legislature does not ‘waste’ its words.
H.R. Vasujith Ram,Kolkata
