On 5.12.2017, Mr. Gopal Subramanium , appearing for the NCT began his rejoinder before the Constitutional Bench hearing the case pertaining to the Special Status of Delhi.
In the last hearing on 30.11.2017, the Union had concluded arguments by highlighting the instances of a constitutional violation by the Delhi Government. Today, Mr. Subramanium focused on the special status of Delhi arguing that Council of Ministers possessed substantive powers.
Mr. Subramanium started with the argument that Delhi had a special place in the Constitution and it should not be seen as just another Union territory. He added that the constituent will of the people had to be accounted for in deciding the status of Delhi. He continued, Delhi had a special status even though it was not a State. The special status was reinforced by the fact that it had a legislative assembly of a “State” under Art 239AA. He referred to Art 239AA(3) (b) to emphasize that the Centre ought to work on the principle of ‘constitutional trust and silence’. Building on ‘constitutional silence’, he argued that the Centre should exercise its powers only when something was outside the scope of State Government. He reiterated that the powers of the Union were only in case of need.
He also referred to Art 239AA(3)(c), which reads that if a law made by the legislative assembly is repugnant to (in conflict with) the parliamentary law, then the parliamentary law will prevail. He argued that the parliamentary law would prevail only in cases of repugnancy. Repugnancy had to be shown in order to override the law passed by a legislative assembly which proved that the Constitution envisaged real legislative-executive power for the State Government of Delhi
Mr. Subramanium continued that Art 239AA (4) which required LG to act with the aid and advice of the Council of Ministers (CoM) would be redundant if the Council of Ministers was not given any executive function. He also argued that denying the people the right to participate in governance despite an elected legislature violated their fundamental rights.
Referring to Art 239AA, he argued that the Art 239AA was an exception to Art 239 and flowing from Art 239AA, the LG was just a titular head. He emphasized that even the Council of Ministers for Delhi were appointed by the President and not the LG. He concluded his submissions by reiterating that ‘aid and advice’ by CoM to the LG was a cardinal principle which would become redundant if the LG had the power to act independently.
(This report relies on contributions from Mr. Ayush Puri)