Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue.

Supreme Court: The 5-Judge Constitutional Bench delivered a 535-page long Judgment in the much-hyped case requiring adjudication on the Constitutional matter of ‘statehood’ to NCT of Delhi. There was coalescence in views of the Hon’ble Judges, who in their separate opinions held that the real power for the administration of the Capital lies with the democratically elected Government of NCT of Delhi.

The appellant was before the Supreme Court, challenging the decision passed by the Delhi High Court dated 04-08-2016. The High Court had negatived appellant’s claim that status of the voters of NCT of Delhi, after 69th Constitutional Amendment, has moved from notional to real. The present reference to the Supreme Court invited the interpretation of Article 239AA of the Constitution that provides special status to the Capital. The appellant-Government of NCT of Delhi was represented by a battery of lawyers including Senior Advocates P. Chidambaram, Gopal Subramanium, Rajiv Dhawan, Indira Jaising and Shekhar Naphade. They contended that insertion of Article 239AA was intended to eradicate the hierarchical structure which functionally placed the LG in a superior position to that of the Council of Ministers. Maninder Singh, learned Additional Solicitor General of India, advanced arguments on behalf of the Respondent-Union of India and the LG. He argued that though Article 239AA envisages constitution of Legislative Assembly for the Capital, yet the President remained its Executive Head who exercised powers through LG.

A summary of conclusions as reached by the Hon’ble Judges in their separate opinions is mentioned hereinafter:

Dipak Misra, CJI for himself and A.K. Sikri and A.M. Khanwilkar, JJ.

  • Our Constitution contemplates a meaningful orchestration of federalism and democracy.
  • Union and State Government must embrace a collaborative federal architecture.
  • In light of NDMC v. State of Punjab, (1997) 7 SCC 339, it was clear that NCT of Delhi could not be accorded the status of ‘State’ under the present Constitutional scheme.
  • An interpretative dissection of Article 239AA reveals that both the Union and the State Government exercise power of making laws according to the Union, State, and Concurrent lists.
  • The words “aid and advice” employed in Article 239AA(4) mean that LG is bound by aid and advice of the Council of Ministers unless he exercises his power under the proviso.
  • Exercise of power under the proviso for reference of the matter to the President has to be done in exceptional cases only.
  • Decisions of Council of Ministers must be communicated to LG but that does not mean that his concurrence is required.

 Dr D.Y. Chandrachud, J.

  • Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government.
  • If the expression ‘any matter’ mentioned in proviso to Article 239AA were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union Territory, thereby resulting in the negation of constitutional structure adopted for governance of the Capital.
  • The LG acts on the “aid and advice” of Council of Ministers; this recognizes that real decision making authority in a democratic form of government vests in the Executive.

Ashok Bhushan, J.

  • Executive power is coextensive with the legislative power. The policy of legislation can be given effect to only by executive machinery.
  • Legislative Assembly of NCT of Delhi represents views of elected representatives; their decisions have to be respected except where LG decides to make a reference to the President.
  • From persons holding high office, it is expected that they shall conduct themselves in the faithful discharge of their duties so as to ensure the smooth running of administration so that rights of all can be protected.
  • This matter traveled to the present Bench when a 2-judge bench comprising of A.K. Sikri and R.K. Agrawal, JJ. referred the matter to a Constitution Bench as substantial questions of law were involved. The reference was answered in the above terms and was further directed to be placed before appropriate regular Bench. [Government (NCT of Delhi) v. Union of India, 2018 SCC OnLine SC 661, decided on 04-07-2018]


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