On 2.11.2017, the Supreme Court commenced hearing the Special Status of Delhi case. The case was initiated by an appeal filed by the Delhi government against the High Court verdict which held that Delhi was not a state and that the Lieutenant Governor (LG) was its administrative head.

Senior advocate Gopal Subramanium, appearing for the Delhi government, started the day’s argument before a five-judge Constitution bench headed by Chief Justice Dipak Misra, Justices A. M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.

Mr Subramanium prefaced his arguments by invoking the importance of the Madisonian concept of a “democratically elected” government – a representation of the trust reposed in it by the electorate. He argued that in the present petition, it would appear that a proviso [Art 239AA (4)] had been interpreted to the detriment of the superseding clause (Art239AA) itself. He classified Union Territories into three types, a model example, where the administrator is a delegate of the President, second – an instance of a legislature established by statute, and third, wherein a legislature has been established by a constitutional amendment. The National Capital Territory (NCT), therefore, falls within the third category as the 69th Constitutional Amendment, 1991 established the same by inserting Art 239AA which contemplated three core concepts, a legislature, a Council of Ministers along with a Chief Minister, and the appointment of the executive by the President.

Mr. Subramaniam drew the attention to the error of the Delhi High Court judgment by stipulating that it had incorrectly applied the decision in the DV Tandel v. Administrator, Goa Daman & Diu (1982) where the accompanying piece of legislation granted wider discretionary powers to the Lieutenant Governor. However, the GNCTD Act 1991 that accompanied the amendment specifically placed restrictions on the discretionary power of the Governor which indirectly also limited the scope of the proviso to Art 239AA(4).

The discussion then shifted to the interpretation of the proviso to Art 239AA(4), with Mr Subramanium strongly advocating for a narrow interpretation of the discretionary powers of the LG so as to preserve the substantive value of the main provision itself. He further restricted the scope of the exception by arguing that the term “any of the matters” in this proviso would only matter where the State Legislative does not have the authority to make laws, in these three subjects- public order, land, and police. The bench rejected this classification and posed a question regarding the criteria that would comprise a “difference of opinion”.   Mr Subramanium replied by postulating that only instances of “authentic difference” which could further be qualified as “weighty” and “constructive” might constitute a matter of enough importance to attract the implementation of the proviso.

The court digressed into discussing Rules of Business and the powers of the Central Government to issue directions and Mr Subramanium raised the contention that while parliamentary sovereignty was retained over the NCT’s legislative powers, its executive supremacy was restricted by virtue of 239AA(4)’s lack of an explicit provision for the same. Therefore, the logical conclusion would be to stipulate that the coextensiveness of the Union executive in the matter of the NCT would be pertinent only to the six subjects mentioned as exceptions to legislative authority in Art 239AA(3).

The pleadings for the day were terminated with an observation from Justice Chandrachud regarding the dual position of the LG, with respect to the President being the titular head of the NCT, and some examples to demonstrate the scope of difference that may appear owing to Delhi’s status as a UT. To this, Mr Subramanium responded that since this difference was constitutionally mandated the Supreme Court must prevent any flagrant violations of the same, and should not impose mandatory concurrence, which renders the need for an executive vacuous. The matter would be heard next on 7.11.2017.

(This post relies on contributions from Ms Nidhi Khanna)