Post the completion of arguments of the Union of India, Senior Advocates Gopal Subramaniam and Rajeev Dhawan replied for the Government of NCT Delhi on 5th and 6th December, 2017. The main arguments are summarized below:
- A constitutional amendment should be perceived differently than a law made by parliament
In any situation, one has to look at the nature of power, and the purposes for which it is being exercised. When constituent power is exercised, the parliament is conscious, that the purpose sought to be achieved could not be done so easily with a statute. There was a statute in 1963 for Union Territories, but it wasn’t truly a representative system of democracy because nominations could be made to the legislative body. Even though the Parliament was aware of these laws, they decided to exercise constituent power.
Therefore, the constitutional amendment being made should be read with purpose. Some exceptions are fine, but to say that GNCT Delhi is nothing more than a Union Government has serious implications. Article 239AA was not introduced so that the administrator be hand strung, and if it remains the same, it would not be an appropriate homage to the exercise of constituent power.
This amendment should be looked at from three different prisms:
- Citizens’ rights: It gives citizens the voice in governance, it is a benign constitutional amendment, not one that was intended to abrogate anyone’s rights.
- Written text of the constitution, combined with the harmony and silences with the text: if we go by the written text and the harmonious construction, it is impossible to say that the cabinet form of government, which is responsible to the legislature in Delhi is not co- existent with the Union. This is intended both by the text, and by the silences.
- Oscillates between purposiveness, and empiricism: The purpose for this amendment is governance and for that, a structural unit is established under this in parts. Empiricism is the power exercised for constitutional purposes, and if there are any transgressions there are checks and balances within this chapter. However, the de-facto empiricism is not the sole rule of interpretation, and the purpose is also to be incorporated along with it.
- Article 239AA did not envisage the executive power for NCT Delhi to vest under Union of India or the Central Government
A constitutional amendment cannot be interpreted with the principle of what is at the end of the road, i.e. if at the end, the Lieutenant Governor has the powers under 239AB to suspend the functioning of any part of Article 239AA under a presidential order, it cannot be said that the Council of Ministers have no executive power. This is where constitutional trust and silence intervenes; that these powers should be exercised when needed, as and when occasioned. This is the theory of constitutional silences which has been referred to.
When Council of Ministers holds office during the pleasure of an appointing authority, it necessarily means representative democracy, and then the Council of Ministers will be collectively responsible to the Legislative assembly. If the Union of India’s argument was right, the constitution should have addressed the collective responsibility to the Parliament instead of Legislative Assembly.
The complete scheme for GNCT Delhi is the Article 239AA, the GNCT Act, the Transaction of Business Rules. The provisions under these mention that although the orders are issued under the name of Lieutenant Governor, contracts are issued in name of the President, but are to be fulfilled by the Council of Ministers it is the Council of Ministers that are responsible.
- Proviso to Article 239AA(4) to be given a narrow meaning
The proviso to Article 239AA(4) has to be given a narrow attribute and the difference of opinion of the Lieutenant Governor should be exercised only under the following circumstances:
- If the Council of Ministers which is responsible to the Legislative Assembly in a cabinet form of government, enter and encroach upon the excepted items 1,2, and 18 of the State List.
- If aid and advise given encroaches upon the Lieutenant Governor’s discretionary power exclusively given to him
- That if the Lieutenant Governor finds that there is a transgression under any legislative or executive action that is in powers of the Union, that can be pointed out as well and he can exercise his difference of opinion on that.
The proviso says “any matter” as it is also a way of saying that one doesn’t know under which category it will fall. This gives some purpose to the proviso. Proviso cannot be the ruler, it is too subordinate and subservient to have rest of the Article go away. The meaning must be one, and it must also have a constitutional purpose.
The arguments have concluded in this case and judgement has been reserved.