The third day of hearing on the Delhi-Centre turf war before the Constitution bench of the Supreme Court began with the senior counsel, Gopal Subramanium, continuing to reiterate his view that the proviso to sub-clause (4) of Article 239AA of the Constitution, dealing with special provisions with respect to Delhi, cannot override the main provision.
As if agreeing with him, the CJI, Dipak Misra, who heads the bench also comprising Justices AK Sikri,A.M.Khanwilkar, D.Y.Chandrachud, and Ashok Bhushan, observed that there cannot be day-to-day impediment in the functioning of the Government by the Lieutenant Governor (LG), and that the responsibility conferred on him is not absolute. “There has to be a Constitutional solution”, he said.
If there is a difference of opinion between the LG and the Council of Ministers, there has to be cogent reasons for the same, the CJI suggested.
The CJI also shared Subramanium’s view that the ripples of the proviso to Article 239AA (4) cannot destroy the main provision. The proviso allows the LG to take immediate action or issue such direction in any matter as he deems necessary, during the pendency of a matter referred to the President, in which the LG disagrees with the Ministry. Article 239AA (4) makes it mandatory for the LG to exercise his functions with the aid and advice of the council of ministers with the CM at the head, except where he is required to act in his discretion.
Subramanium emphasized that in a Westminster model, which India follows, the element of accountability to legislature is paramount. “We can’t delegate accountability to the LG”, he quipped.
If Article 239AA is intended to create democratic framework of government and legislature, did the Constitution derogate collective responsibility, he asked.
He argued that if aid and advice of the council of ministers on the LG is not binding, the decision would be meaningless. To this the CJI said that “ordinarily”, there should not be any difference of opinion.
Subramanium then delved into the nature of the aid and advice of the council of ministers.
On Tuesday, he argued that if aid and advice is to be ‘respected’ and not binding on the LG, it would be a contradiction in terms. He also continued his submission that the proviso cannot override the aid and advice of the ministry to the LG. He criticized those who tend to use the proviso as an “umbrella”. If overriding powers are granted to the LG, what this man (the CM) is here for, he asked.
Arguments are continuing.