On 08.11.2017, arguments continued for the third day, before the five-judge bench of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.
Mr Gopal Subramaniam began by contending that the ideal for a quasi–federal state would be a model of Cooperative Federalism. This would model dual governance wherein different assignees of state authority would work in a cooperative manner to further a common interest as opposed to passing differing policies and legislation, adversely affecting the interests of the citizens.
In response, Justice Chandrachud observed that constitutional law was not restricted to the written word, i.e. the constitutional text but rather could find purchase in several constitutional practices/conventions that he labelled as soft constitutional law. This could be understood as contrasting with the hard constitutional law and an example of this contrast was manifest in the appointment of the Governor. The Constitution decrees that the Governor shall be appointed by the President on the aid and advice of the Prime Minister and the Council of Ministers, (hard constitutional law) but some generally followed conventions like the practice of consulting the Chief Minister prior to such appointment or appointing a governor who is not native to the state are examples of soft constitutional law.
Gopal Subramaniam further submitted, that since Art 239AA established an elected legislature for the NCT, the primary duty of the elected representatives who also form the State executive was to their electorate as opposed to an administrator/executive functionary like the LG. He conceded that while the case of Delhi was unique, it by no means obliterated certain premises upon which the principle of ‘constitutional statesmanship’ was based. By adopting an obsequious attitude towards the President-appointed LG, this very fundamental doctrine at the heart of soft constitutional law would stand vitiated.
Developing the argument further, Subramaniam focused on the unique status of the NCT, by observing that it did not fall into the straightjacketed definition of a Union Territory, while simultaneously falling short of the definition of a State owing to parliamentary supremacy over the State legislature. He concluded his arguments by postulating that this dual character of Delhi would imply that it required a treatment tailored to its unique constitutional position, especially by contradistinction between 239AA and Art 152, which stated that a legislature established by an Act of Parliament was necessary.
In closing, the Chief Justice Dipak Misra observed the ideal solution would be a functional interpretation which would involve reading the constitution in an efficacious manner rather than a structural division between the powers of Chief Minister and LG. The Hon’ble Chief Justice also observed that the LG should act in accordance to the aid and advice of the Council of Ministers in regular matters, but may consult the President on any issues of genuine difference.
Following the aforementioned arguments, Mr P. Chidambaram approached the bench to commence his arguments on behalf of the petitioner. He began by citing the landmark judgment in Kesavananda Bharathi v. State of Kerala, where the Court directed that all governmental structures in the country would be democratic and if not, would find themselves in violation of the basic structure doctrine. He drew attention to the current status of the LG in the NCT being akin to the position of the British Viceroy in pre-independent India and this position was a grave constitutional violation. Furthermore, he stipulated that the phrasing of Sec. 24 of the GNCTD Act, 1991 was very similar to Art 200 of the Constitution that ensured that while the Governor was vested with the right to withhold assent, it was an exceptional right and in no way could qualify as the rule. He concluded his arguments for the day by expounding on the necessity of the aid and advice of the Council of Ministers in furthering the efficient functioning of the State. The matter will be heard next on 9.11.2017.
(This post relies on contributions from Mr. Ayush Puri)