News Update: Day 1-Constitution Bench hearing of GNCTD v. Union of India

A five Judge Constitution Bench in the Supreme Court commenced the hearing of a long standing challenge between the Government of National Capital Territory of Delhi (hereinafter referred as GNCTD), and the Central Government, over the powers of the Lieutenant Governor of Delhi (hereinafter referred as Lt. Governor) and the Chief Minister along with his Council of Ministers on 2^nd November, 2017

Our short background note to this matter can be accessed here.

Senior Advocate Gopal Subramaniam, representing GNCTD made his submissions before the Court today. His primary submissions were:

• The real purpose of Article 239AA was to establish a democratically elected government in Delhi

It was submitted that by way of Article 239AA, NCT Delhi was given a special status, distinct from other Union Territories that do not have legislative or executive power and are governed by the Union Government as is enumerated under Article 239.

"Article 239AA is a provision of entrustment, public trust, and accountability."

• NCT of Delhi is not a state, but Article 239AA accords it a special status

Article 239AA gives the NCT of Delhi powers to directly elect a legislative assembly, that has the power to make laws on all matters listed in State List as well as Concurrent List, except matters under items 1,2, and 18 of the State list that deal with public order, law, and land. In these matters, the Parliament's law making power has supremacy.

• Discretion of Lt. Governor should be interpreted narrowly

The Lt. Governor should exercise his difference of opinion from Council of Ministers as in proviso of Article 239AA(4) to the extent of matters listed in items 1,2, and 18; or if there is a grave infraction on part of the council of ministers. This proviso should be read with Rule 41 of the Transaction of Business Rules, 1993

• A textual interpretation to the proviso has led to no executive power with GNCTD

The Delhi High Court's textual interpretation of proviso to Article 239AA(4) has led the GNCTD having no executive power even on matters that are under their domain unless the Lt. Governor gives his concurrence. Examples: The Lt. Governor is not passing proposals relating to local mohalla clinics, or for improvement of roads, etc.

• The proviso should be given a constructive meaning that does not nullify the main provision

This proviso is a facilitator clause and is not supposed to be an interference. There should be harmonious construction of both the provisions.

"The purpose of a proviso in constitutionalism is to prevent transgressions of authority and to act like checks and balances."