CJI Dipak Misra:  Opinion Summary (NCT v UOI)

 

Chief Justice Dipak Misra wrote the majority judgment for himself, Justices A.M. Khanwilkar and A.K. Sikri. In 237-page judgment, he held that the Chief Minister and not the Lieutenant Governor (LG) is the executive head of the Delhi government.

 

He clarified that Delhi cannot be seen as a State relying on a 5 judge bench decision in NDMC v State of Punjab, . However it enjoys a sui-generis, a class apart, status under the constitutional rubric. He further observed that “…status of the LG is not that of a governor of a State, rather LG is an administrator in a limited sense.."  Thus, he viewed Delhi as a hybrid arrangement distinct from that of an Union Territory under Article 239(1) of the Constitution.

 

He futher reflected on the nature of this special status. The 69th Amendment to the Constitution introduced Article 239AA  which created an elected legislature for Delhi.  He observed that Article 239 AA embed within itself the principles of "collective responsibility". Accordinlgy the Council of Ministers are accountable to the Delhi Legislature, and the  "representative government" cannot be defeated by making  LG the executive head of Delhi government. Thus, he interpreted Article 239AA(4) to mean that the LG is bound by the 'aid and advice' of the Council of Ministers on all those subjects where the Delhi Assembly has the power to make laws.

 

So, barring exempted matters of land, public order and police, the LG is bound by the aid and advice of the Council of Ministers. Referring to “constitutional pragmatism”, Justice Dipak Misra emphasised that “spirit and conscience of the Constitution should not be lost in grammar, and popular will of the people  which has legitimacy in domestic set up cannot be allowed to lose its purpose in simple semantics.

 

He further circumscribed the power of the LG under Proviso to Article 239AA(4) to refer “any matter” to President. He held that “any” cannot mean “every matter” and matters can be referred to the President only in narrow exceptional situations. But, he did not illustrate the situations where the LG can refer the matter to the President.

 

Two points clearly emerge from CJI Dipak Misra's judgment -  first, as a rule, the LG is bound by ‘aid and advice' of the Council of Ministers; secondly,  the LG has no independent power under the Constitution. Under some exceptional situations, he can at best refer the matter to the President but cannot keep files for himself. Referring to “pragmatic federalism”, he emphasised that the LG has to be informed of the Cabinet decisions but his concurrence is not required.