Arguments Summary Day 5: November 14, 2017

The hearings resumed before the five-judge bench of Chief Justice Dipak Misra, Justices A.M. KhanwilkarD.Y. ChandrachudA.K. Sikri and Ashok Bhushan. The crux of today's arguments revolved around reading seemingly incongruous provisions harmoniously.

Ms. Indira Jaising commenced her arguments with the discussion on the applicability of Article239AA, in light of the principle that the provisions of the Constitution must be interpreted in a manner so as to avoid constitutional anarchy. Good governance lies in the sound implementation of laws. For good governance, a definite enforcing authority must be constitutionally empowered. The presence of two concurrent authorities attempting to implement law has resulted in a situation wherein effective implementation of the laws are being scuttled. In response, the Chief Justice agreed that the Constitution indeed does not permit any anarchy.

Ms. Jaising then requested the bench to create a vertical, airtight compartment in which the Union Executive does not unreasonably curtail the powers and jurisdiction of the Delhi Government. The CJI further remarked that such an interpretation would be subject to arguments from opposing counsel. He also added that any solution would follow a path of evolution as opposed to being a mere reactionary measure to an unpleasant incident in the past.

Post lunch, Ms. Jaising expanded on her argument by stipulating that Articles 239, 239A 239AA, and 239AB have to be interpreted contextually. This would exclude the argument that Article 239 was to be read into 239AA and thus the LG’s powers could not find a point of origination from Article 239 which vests the LG with independent and expansive powers. Additionally, Article 239AB would act as a limiting measure that could be invoked in order to suspend the operation of Article 239AA, if evidence of misgovernance was conclusively established. A corollary to this would be that in the absence of invoking Article 239AB, the power of executive order would vest in the State.

She further submitted that as Entry 45 of the Concurrent List empowers the NCT government to constitute a ‘commission of enquiry’ without the approval of the LG, the Delhi HC was mistaken in declaring that the Delhi Administration lacked this authority. (This controversy could be traced to a commission appointed by the AAP Government to look into the irregularities in DDCA scam. The LG opposed the appointment of such a commission stating that the government did not possess the right to do the same as it was not a State).

Ms. Jaising discussed the basis for classifying the Delhi government as the ‘appropriate authority’ by first referring to General Clauses Act, 1897 wherein Sec. 2(58) defines State to include ‘Union Territory’. She highlighted that the Commission of Enquiry Act, 1952 empowers ‘State governments’ to constitute commissions for subjects in the State and Concurrent Lists. When read with the provisions of the General Clauses Act, one could reasonably infer that the Delhi Government had the authority to constitute the commission.

Thereafter, Mr. Rajeev Dhavan, representing the NCT, commenced his arguments before the bench. He contended that all constitutional amendments must be interpreted according to the principle of collective responsibility, and the difference between devolution of power and constitutional authority must be maintained. Accordingly, in light of the 69th Amendment, Article 239AA was an instance of constitutional authority and not the devolution of powers to Union Territories under Articles 239 and 239A.

On this note the day’s proceedings came to end. The hearings will continue on 15.11.2017.

(This post relies on contributions by Mr Ayush Puri)