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Why the Supreme Court ruling on Delhi government’s powers will only trigger more litigation

Why the Supreme Court ruling on Delhi government’s powers will only trigger more litigation

Why the Supreme Court ruling on Delhi government’s powers will only trigger more litigation
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By Shweta Hingorani  Jul 13, 2018 8:39:26 AM IST (Updated)

The constitutional history of the NCTD reveals the challenges faced by law-makers in evolving a suitable structure for its administration.

The decision of the Constitution Bench of the Supreme Court in the case of Government of NCT of Delhi v. Union of India, delivered on July 4, 2018, has settled several important aspects regarding the constitutional scheme governing the National Capital Territory of Delhi (NCTD).

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In the process, this much-awaited decision has rightly reversed a number of legally misconceived and untenable findings of the 2016 Delhi High Court judgement.
Broadly speaking, it has restored the central authority of the democratically elected government of the NCTD (GNCTD) vis-à-vis the Lieutenant Governor (LG) in the administration of the NCTD, whilst noting certain limitations on its executive and legislative power on account of its status as the national capital.
Unfortunately, however, the Proviso to Article 239-AA(4) of the Constitution, which enables the LG to take a different view from the Council of Ministers on any matter, remains a bone of contention.
The decision of the Court itself has been construed differently by the affected parties as is evident from the intense political wrangling being witnessed over the decision ever since its pronouncement.
This article offers a more appropriate interpretation of the relevant constitutional provisions that would serve to limit the scope for conflict and confrontation between the constitutional functionaries responsible for the governance of the NCTD, and which is indeed supported by the ‘text, context, scheme and spirit of the Constitution’.
Constitutional Scheme Governing the NCTD
The constitutional and legislative history of the NCTD reveals the challenges faced by law-makers in evolving a suitable structure for its administration.
The primary challenge lies in devising a structure that secures for the Centre sufficient control over the national capital and at the same time fulfils the democratic aspirations of its sizeable population to govern itself.
Various arrangements for the administration of Delhi have been tried over the years, culminating in the insertion in the Constitution of special provisions, i.e. Articles 239-AA and 239-AB, which came into force on February 1, 1992.
Pursuant thereto, the Union territory of Delhi was to be called the NCTD and the administrator thereof appointed by the President under Article 239 (Administration of Union territories) was to be designated as the LG. Further, a legislative assembly was to be constituted for the NCTD, whose members were to be chosen by its people by direct election and which was to enjoy such legislative power as defined in the provisions.
Stipulation was also made for a Council of Ministers, which was to aid and advise the LG in relation to matters within the legislative domain of the legislative assembly, and for such Council to be collectively responsible to the legislative assembly.
These provisions are aimed at reconciling the aforesaid twin objectives by preserving the ultimate responsibility of the President (acting through the LG) for administering the NCTD whilst putting in place a cabinet system of government for the NCTD.
The purpose behind the incorporation of such provisions in the Constitution was to give a degree of stability and permanence to the ‘core features of the governmental structure’ for the NCTD by conferring upon them a constitutional status, thus giving the NCTD a special status among the Union territories.
The special constitutional provisions relating to the NCTD constitute an independent scheme and a complete code in themselves, to which relevant provisions of the Constitution are subject. The Government of National Capital Territory of Delhi (GNCTD) Act, 1991 enacted by Parliament in pursuance thereof, as also the Allocation of Business Rules, 1993 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 issued by the President under the GNCTD Act, 1991, are intended to give effect to or supplement these provisions.
Executive Power Co-extensive With Legislative Power
Article 239-AA(3)(a) provides that the legislative assembly of the NCTD shall have power to make laws with respect to any matter enumerated in the State List or the Concurrent List in so far as any such matter is applicable to Union territories, except for matters pertaining to public order, police and land.
Article 239-AA(3)(b) and (3)(c) highlight the plenary powers of Parliament under the Constitution to make laws for a Union territory as also its legislative supremacy, including in case of any repugnancy, over the NCTD in relation to matters in both the State List and the Concurrent List.
The phrase ‘in so far as any such matter is applicable to Union territories’ acknowledges the difference in the constitutional status of States and Union territories and is of great significance.
While examining the implications of the inclusion of such phrase in Article 239-AA(3)(a), the Constitution Bench has held that whether or not the reference to ‘State’ in any entry in the State List or the Concurrent List would include a Union territory would depend on the particular subject or context.
To put it differently, neither would the mere use of the term ‘State’ in any particular entry in the State List or the Concurrent List by itself take such matter out of the legislative purview of the legislative assembly of the NCTD and nor would such term be deemed to always include a Union territory within its ambit, irrespective of the subject or context.
Consequently, while the legislative assembly can legislate on matters in the State List and the Concurrent List notwithstanding that these specifically refer to a ‘State', such legislative competence is limited to only those matters that are relevant for or applicable to Union territories.
This has the effect of extending the restrictions on the legislative power of the legislative assembly beyond the reserved matters listed in Article 239-AA(3)(a).
The scope of the legislative power of the legislative assembly as discussed in the preceding paragraphs has important ramifications for the executive power of the GNCTD contemplated in Article 239-AA(4).
The substantive part of Article 239-AA(4) states there shall be a Council of Ministers, with the Chief Minister at the head, to aid and advise the LG in the exercise of his functions in relation to matters with respect to which the legislative assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.
Hence, the GNCTD exercises executive power in relation to all matters on which the legislative assembly can legislate, which is in line with the settled constitutional principle that executive power is co-extensive with legislative power. Furthermore, the Constitution Bench has ruled that LG must act in accordance with the aid and advice of the Council of Ministers in respect of all such matters, and that the aid and advice principle would not apply only in cases where the LG is required by law to exercise his discretion.
The Proviso to Article 239-AA(4) lays down the procedure to be followed in the case of difference of opinion between the LG and his Council of Ministers on any matter. According to this procedure, the LG is mandated to make a reference of such matter to the President for his binding decision and can act on his own in the interim only if the matter is urgent in his view.
The Constitution Bench has, in light of its conclusions regarding the LG being bound by the aid and advice of the Council of Ministers as also the above procedure requiring the LG to abide by the decision of the President (acting on the aid and advice of the Union Cabinet) on any difference of opinion, held that the LG has no independent decision-making authority in respect of matters within the legislative domain of the legislative assembly.
With regard to the matters in relation to which the LG can exercise discretion, the same may be expanded by legislation. The LG thus enjoys wider discretion than the Governor of a State, whose discretion is confined to that required by or under the Constitution.
The wide discretion of the LG is further enlarged by virtue of inclusion of the phrase ‘in so far an any such matter is applicable to Union territories’ in Article 239-AA3(a). As explained above, the said phrase qualifies the powers of the legislative assembly in respect of matters in the State List and the Concurrent List, with the result that the LG is not required to act on the aid and advice of the Council of Ministers in relation to such additionally excluded matters but in his discretion (to the extent powers or functions in respect of such matters are entrusted or delegated to him by the President), in accordance with Article 239-AA(4) read together with Section 41(1) of the GNCTD Act, 1991.
Proviso to Article 239-AA(4)
Interpretation of the Court
As mentioned earlier, the Proviso to Article 239-AA(4) has been the subject of much debate and has a crucial role to play in maintaining the constitutional balance between the Centre and the GNCTD in the administration of the NCTD. The Constitution Bench has opined that ‘difference of opinion on any matter’ cannot be given a purely textual interpretation.
Thus, a difference cannot be a ‘contrived difference’ and nor can any matter mean ‘every matter’, otherwise it could potentially lead to all decisions being taken by the Centre by way of reference to the President, thereby rendering redundant the constitutionally endowed cabinet form of government in the NCTD. Further, the concurrence of the LG is not required, though he has a right to be kept duly informed and apprised on all matters to enable him to take recourse to the Proviso should he so deem fit.
At the same time, the Constitution Bench has advisedly refrained from providing an exhaustive list of matters in relation to which the Proviso may be invoked, by citing the complexities of administration and difficulty in anticipating unforeseen situations that would need to be addressed by the constitutional provisions.
Instead, it has sought to narrow the ambit of the Proviso by reading into it certain restrictions. As per the Constitution Bench, the LG must not exercise his power under the Proviso ‘in a routine manner’ but ‘in exceptional circumstances’ ‘on valid reasons after due consideration’ ‘where a matter fundamental to the governance to the Union territory is involved’ or ‘when it becomes necessary to safeguard the interest of the Union Territory’.
The Court has attempted to highlight the purpose behind the Proviso by illustrating situations that may justify its invocation by the LG. For instance, ‘where the executive act of the government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union government’, or ‘to ensure compliance with the provisions of the Constitution or a law enacted by Parliament, or where there exist ‘substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union’.
In other words, the Proviso has been construed as a ‘protector of national concerns in regard to the governance of the NCT of Delhi’. In the opinion of the Constitution Bench¸ the operation of the Proviso should pose no problem if these fundamental principles are adhered to and the Proviso is invoked only after all efforts have been made to resolve the difference through discussion and dialogue as prescribed.
I believe that the above interpretation of the Proviso is not without difficulty and leaves plenty of scope for ambiguity, and therefore, conflict, particularly when the Centre and the NCTD are governed by different political parties. The broad language of the qualifications, coupled with the fact that in the context of the complex governmental structure of the NCTD it would not be possible to identify matters until an issue came up, indicates that the Proviso as interpreted by the Court does not lend itself to easy determination.
Alternative Interpretation
As a point of departure, let us consider the question of ‘services’ (currently at the centre of controversy between the Centre and the GNCTD), in light of the interpretation of the Proviso by the Constitution Bench. If the Court were to opine that the Centre had jurisdiction over this subject, the matter would rest there.
However, even if it were to hold that this matter fell within legislative purview of the NCTD and therefore the GNCTD had executive authority in this regard, the LG could still take a different view in a particular case on grounds of national interest or the like and reserve such case for the binding decision of the President.
As a result, the decision of the GNCTD would be substituted by that of the Centre. In such a situation, the GNCTD could not be held to be collectively responsible to the legislative assembly, since it would have no control over such decision. That surely cannot be the position in law, and is indeed contrary to the express constitutional scheme set out above.
The fallacy in the interpretation of the Proviso by the Constitution Bench is that it has interpreted the Proviso as pertaining only to such portion of the substantive part of Article 239-AA(4) that deals with the exercise of executive functions by the LG on the aid and advice of the Council of Ministers, and not the portion where the LG is required by or under any law to act in his discretion.
In so doing, the Court has overlooked the fact that Proviso applies to the substantive part of Article 239-AA(4) as a whole, and not merely to one portion.
If the Proviso is properly construed as applying to the whole of the substantive part of Article 239-AA(4), the phrase ‘difference of opinion between the Lieutenant Governor and his Ministers on any matter’ can only mean difference or disagreement as regards whether any particular matter is one where the LG is required to exercise his executive power on the aid and advice of the Council of Ministers on account of such matter falling within the legislative competence of the Legislative Assembly, or rather, one where the LG is required to act in his discretion.
In other words, the difference of opinion contemplated by the Proviso to Article 239-AA(4) does not pertain to areas of difference but is limited to a more fundamental kind of difference concerning jurisdiction, i.e. whether the matter in question falls within the sphere of binding advice of the Council of Ministers, or alternatively, relates to the legal discretion of the Lieutenant Governor to be exercised by him in accordance with Article 239-AA(4).
Any argument that seeks to counter such interpretation by referring to Section 41 of the GNCTD Act, 1991 cannot stand, as is shown later. Suffice it to say, the GNCTD Act, 1991 cannot control the interpretation of the constitutional provisions but would have to be brought in line with them.
Thus, by taking such an alternative interpretation of the Proviso, the areas of competence would be clearly demarcated between the Centre (acting through the LG) and the GNCTD, and the GNCTD would have full control over matters within its competence such that there would be no impediment in enforcing its collective responsibility to the legislative assembly.
Such a construction of the Proviso to Article 239-AA(4) is in line with the well-accepted constitutional principle of giving meaning to every provision, besides not being faced with the problem of having to read qualifications into the provision.
If the Proviso is so interpreted, the difference of opinion regarding whether or not ‘services’ falls within the legislative, and hence executive, power of the GNCTD, if not able to be resolved through discussion and dialogue between the LG and his Council of Ministers, would be referred by the LG to the President for his binding decision (with the LG being entitled to take immediate action in case of urgency of the matter). Such decision of the President would of course be subject to judicial review.
This interpretation of the Proviso to Article 239-AA(4) is further buttressed by the fact that Article 239-AA does not, unlike Article 163(2) in case of the Governor of a State, provide that if any question arises as to whether any matter is one with respect to which the LG is required to act in his discretion, the decision of the LG in his discretion shall be final.
Rather, provisions to this effect are contained in Section 41 of the GNCTD Act, 1991, which reads as follows:
“Section 41. Matters in which Lieutenant Governor to act in his discretion:-
(1) The Lieutenant Governor shall act in his discretion in a matter –
(i) Which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President ; or
(ii) In which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions.
(2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.
(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.”
The GNCTD Act, 1991, as noted earlier, has been passed merely to give effect to or supplement the special constitutional provisions relating to the NCTD. As such, in the absence of Parliament using its constituent power to provide in Article 239-AA itself that the decision of the LG shall be final, despite there being a precedent before it in terms of Article 163(2), it does not lie within the competence of Parliament to then confer upon the LG by way of Section 41(2) & (3) of the GNCTD Act, 1991 the power to finally decide any question as to whether or not any matter is one in respect of which the LG is required to act in his discretion or to exercise any judicial or quasi-judicial function.
This is particularly so, given that the constitutional provisions with respect to the NCTD, being a self-contained code, do provide for the manner in which the question of discretion of the LG under Article 239-AA(4) is to be determined, by requiring any difference of opinion in this regard to be referred to the President for final decision.
And it moreover fits in with the constitutional scheme regarding the NCTD as embodied in Articles 239, 239-AA and 239-AB of the Constitution that the President, who occupies for this purpose a position analogous to the Governor of a State, should have the final decision as regards any question concerning the discharge of executive functions by the LG (on the aid and advice of the Council of Ministers or in his discretion).
Conclusion
The decision of the Constitution Bench of the Supreme Court has set the power sharing between the LG and GNCTD on a course correction after the Delhi High Court ruled that the LG was the administrative head of the NCTD. However, the interpretation by the Court of the Proviso to Article 239-AA(4) leaves it to the wisdom of the parties to engage constructively to govern the NCTD. Reposing such faith in the constitutional functionaries involved in the administration of the NCTD appears somewhat misplaced, given the unseemly events that have played out in the capital over the past few years. Indeed, such an interpretation has left the door open for further litigation. In my view, the Proviso to Article 239-AA (4) has to be given a purposive interpretation that furthers, and not defeats, the aim of the substantive part of Article 239-AA(4) of the Constitution. The interpretation of this Proviso along the lines that I have suggested above harmoniously construes the provisions of Part VIII of the Constitution so as to achieve a balance between, and give effect to, the two equally important and indispensable objectives stated earlier – namely, of preserving the ultimate responsibility of the President (acting through the LG) for administering the NCTD while at the same time securing for the people of the NCTD their democratic right of self-governance by safeguarding the cabinet form of government set up in the NCTD.
 
Shweta Hingorani is Advocate, Supreme Court and Trustee, The Kapila & Nirmal Hingorani Foundation – an Intervenor in the Government of NCT of Delhi v. Union of India in the Supreme Court.  
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