On 16.11.2017, hearings continued for the seventh 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 Rajeev Dhavan opened by observing that the government in Delhi was appointed via the means of an election that was regulated by the Election Commission. He traced the Delhi Government’s transition from merely rendering ‘assistance’ according to the 1966 Act, to providing ‘aid and advice’ to the LG in accordance with the GNCTD act, 1991. Therefore, the Lt. Governor (LG) would be a delegated head who would administer as a representative of the President. The LG’s discretionary powers would not extend to situations of immediacy or urgency, especially when governance was hampered.
Mr Dhavan pointed out that that there is a distinction between the powers of the LG to take independent action to administer the NCT and the constitutionally mandated binding Presidential authority. He observed that the LG cannot, therefore, bona fide ‘run’ the National Capital Territory. The discussion in the court then digressed to the interpretation of entries in lists, with Justice Chandrachud observing that the position of the LG could not be identical with that of an ordinary Governor owing to the fact that public order, police and land was exclusively reserved for the Union jurisdiction and here the concept of aid and advice did not even exist. He further added, that the definition of these terms is restricted seeing as to how land could only include agricultural land, which resulted in other aspects of land remaining in the hands of the Delhi Government. The other judges on the bench agreed with this observation but could not further this debate seeing as to how several of the discussed entries (by Rajeev Dhavan) were not under challenge in this matter.
The Chief Justice also observed that, in the interpretation of the term ‘any’ in the proviso to Article 239AA(4), the bench would concede that ‘any’ could not be equivalent to ‘every’ and therefore there was an implicit limitation on the authority of the LG to take discretionary action. Mr Rajeev Dhavan further observed, almost humorously, that the rules of business were vast and if the LG were to take an active role in administering the subjects listed therein, there would be a requirement of at least twenty such Lieutenant Governors.
After lunch, Mr Rajeev Dhavan presented a vast, well – connected argument that relied on interpreting several provisions of the GNCTD Act, 1991 and the Transaction of Business of the GNCTD Rules, 1993. He contended that after reading together several key provisions which explicate the relationship between the LG and the Council of Ministers, one could reasonably infer that the LG must, in most daily matters of administration, act on the aid and advice of the Council of Ministers. Even when there are authentic areas of difference, the course of action for the LG to take would be to ‘reserve’ the matter for Presidential consideration. It would not fall within his sphere of authority to ‘block’ any matter or ‘reject’ any action taken by the State Government. Mr Dhavan insisted that his actions must impede the administration of the NCT and cause massive inconvenience to the large electorate in the area.
The matter will be heard next on 21st November 2017.
(This report relies on the contributions of Mr Ayush Puri)