Is Delhi a Union Territory with the Lieutenant Governor its sole administrator or is it a Special State with the L-G bound by the aid and advice of the elected government’s Cabinet of Ministers?
August 4, 2016 judgment of the Delhi High Court declared the L-G to have "complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the L-G".
A Constitution Bench of Chief Justice Dipak Misra, Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan heard the Delhi government’s appeals against the High Court judgment.
Excerpts from the arguments made in court for 15 days starting from November 2, 2017:
For the Delhi government:
The 69th Amendment of the Constitution in 1991 gave the National Capital of Delhi special status with its own democratically elected government and legislative assembly. Sub-section (4) of Article 239AA of the Constitution mandates that a Council of Ministers shall aid and advice the LG in his functions regarding laws made by the Legislative Assembly. The purpose of Article 239AA was to "provide some kind of voice to the people, some kind of governance to the people". The amendment was not just a structural addition to the Indian Constitution, but was based on the quality and fundamental principles of egalitarianism. Article 239AA was to "provide some kind of voice to the people, some kind of governance to the people".
The focus of the current controversy is a proviso to Article 239AA (4), which mandates that in case of a “difference of opinion” between the L-G and the Council of Ministers, the former has to refer the issue to the President. In the meanwhile, while that decision is pending before the President, the L-G, if the matter is urgent, can use his discretion to take immediate action.
L-G has misused the discretion in this proviso to block governance when the proviso envisaged a "great confidence, trust" to evolve between the Chief Minister and the L-G. The "extraordinary discretion" of the L-G is confined to special circumstances and not in everyday governance.
"We are not contesting parliamentary supremacy. We acknowledge it. But still there must be an elbow room for the Legislative Assembly of an elected government to function... Everything we do does not require the concurrence of the L-G… L-G is not the monarch of all he sees,” Mr. Subramanium argued.
The LG is not a Viceroy but simply an agent of the President whose powers depend on the pleasure of the President.
69th Constitutional Amendment was passed by a “very, very special majority of the people’s representatives because they felt that there was something deficient in the Constitution”.
Section 44 of the Government of National Capital Territory Act of 1991 shows that the President itself, in this parliamentary law, has said the LG is “required to act on the aid and advice” of Delhi's Council of Ministers.
The 69th Constitutional Amendment was the most significant expression of the people’s sovereignity… We are not seeking any higher or greater respect, but the respect due to a Cabinet form of government.
Indira Jaising and Shekhar Naphade
Article 239AA should be interpreted so as to prevent constitutional anarchy
Executive powers of the Delhi government is co-extensive with its legislative powers
A democratic and responsible government was the objective of the 69th Constitutional Amendment.
It highlights the principle of co-operative federalism to note that a law passed by the Delhi government cannot be vetoed by the L-G.
‘Any’ in the proviso to Article 239AA (4) does not extend to every single matter. This would hamper day to day governance of Delhi
GNCTD Act of 1991 and the Transaction of Business of the GNCTD Rules of 1993, when read together, shows that LG should act according to the aid and advice of the Delhi Cabinet.
Additional Solicitor General Maninder Singh for the Centre
Delhi government’s role is only that of municipal governance. Even Delhi Fire Services Act and DANICS are pieces of central legislation
L-G has over-riding authority to decide on the conduct of business of the NCT government, and this is not just limited to matters of public order, police and land
Delhi government’s executive powers are not binding on the L-G.
Delhi government does not even have a State Public Service which shows that it is not a State.
Article 239AA comes under the head of ‘Union Territories’ in the constitutional text which shows that Delhi is a Union Territory with President as its executive head through the L-G
Some of the oral exchanges between the Bench and the lawyers:
"So, in daily governance and implementation of laws, L-G says he is your boss," Justice A.K. Sikri
"It would have been alright if he had said just that. He is actually saying that we do not count," Gopal Subramanium.
Chief Justice Misra: Difference of opinion between the LG and the Delhi government should be authentic
The case reserved for judgment on December 6, 2017.