On 07.11.2017, arguments continued for the second day, before the five-judge bench of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan. Yesterday, he had argued that the discretionary power of the LG under Article 239AA(4) had to be interpreted restrictively to ensure that the substantive value of Article 239 is preserved.
Mr Gopal Subramanium began by arguing that the Legislature and Council of Ministers represent constitutional institutions and could not be negated by Lieutenant Governor (LG). He elaborated on the various methods by which this proviso could be interpreted – such as textual, intentional, contextual and preambular – and stressed strongly that no interpretation of a proviso should be construed in a manner so as to defeat the operation of the parent clause, Article 239AA in the instant case.
The bench posed several questions regarding the nature of the LG’s powers with respect to delegated legislation and the differences between Art 163 and 239AA(4). Mr Subramanium also contended that there were safeguards in the form of Art 239AB, for any breach of executive/legislative authority of the NCT administration and compared it with Art 356. This was immediately dismissed by Justice Chandrachud and Chief Justice Dipak Misra who pointed out that Art 239AB suspended the operation of Art 239AA which is very different from Art 356, which suspends the State Government itself.
Mr. Subramanium also submitted that Art 239AA(4) couldn’t be given an interpretation which defeated the intrinsic values of the preamble and the ‘cabinet form of government’ was one such value which was being undermined by the LG.
The hearings in the matter will continue on 08.11.2017.