GNCTD v. Union of India- CJI: “There cannot be difference of opinion in day-to-day matters”

On day 2 of GNCTD v. Union of India, Senior Advocate, Gopal Subramaniam continued his arguments and focused on interpretation of aid and advise of the Council of Ministers in the cabinet form of government and argued that such aid and advise is binding on the Lieutenant Governor of NCT Delhi, except in matters in which he has discretion, or is provided under law.

The Chief Justice, Dipak Mishra remarked that as under Article 239AA, in relation to the laws on which the LG has powers, day to day functioning is not covered under it. Justice Sikri agreed with him, and said, that as per Section 44 and 45 of the GNCTD Act, the day to day functioning of the State is with Council of Ministers.

Senior Advocate Gopal Subramaniam argued that aid and advice given to the LG in matters that are intra-vires the Council of Minister’s capacity to make laws are binding on the LG, and the proviso that gives him the power to differ is not intended to erode the entire provision. The CJI remarked that aid and advice is normally to be respected and accepted, unless there is a real good reason to differ.

Mr. Subramaniam added that in our Cabinet form of Government, the aid and advice by the Council of Minister is binding because:

  • All devolution of power in the end is with the people who vote
  • The cabinet is also answerable to the legislature
  • The Cabinet is also answerable to the Courts

On Day 3, Senior Advocate Gopal Subramaniam elaborated the elements that should constitute the matters under the proviso to Article 239AA(4), on which the LG could have a difference of opinion with the elected Council of Ministers. He submitted that the purpose of the proviso is to be a protector, and it should have the following elements, wherein the LG could exercise his difference of opinion:

  • When executive acts by GNCTD may impede or prejudice the exercise of executive power of the Union
  • When there may be a requirement of compliance to the laws made by the Parliament or per the Constitution
  • Where GNCTD seeks to exercise power in the area where there is no legislative power
  • Matters located in Rule 23 of the Rules of Business

He emphasised that the purpose of these elements are that there is no trespass in each other’s territory or prejudice to their powers.

Justice DY Chandrachud remarked that, “Would it be better to say that these categories are illustrative, and then let the constitution unfold, but you can’t let it be too broad so as to encroach upon the powers of the elected executive.”

The Chief Justice Dipak Mishra further added that the difference of opinion cannot be on day to day administration. Such difference can be on:

  • If it infringes Rule 23 of the Rules of Business
  • Executive action that clashes with union executive action, when it is not in the constitutional territory
  • This difference has to be relating to policy matters, and this difference should be established on cogent reason, and there cannot be difference for the sake of difference.
  • Being the administrator does not mean that he becomes the sole administrator of NCT Delhi.
  • Cannot be difference of opinion if it is within the parameters of law or within the acceptable functioning of their role as constitutional functionaries.

The hearing will continue on Thursday(9th November) before the Constitution Bench.