Killing the suspense over the Delhi Assembly: Part I

Guest Bloggers:  Shraddha
Kulhari and Sujoy Chatterjee

Post
the 2014 General Elections, there has been renewed interest in the
political developments surrounding the Delhi Legislative Assembly,
kept in suspended animation since mid-February 2014.
However, irrespective of the political fortunes of the fifth Delhi
Assembly, there are legal issues involved which require deliberation.
We believe that these issues are de
hors
the present political
developments, inasmuch as the constitutional principles involved are
universally applicable for posterity and are not constrained or
influenced by the vagaries of electoral politics. Therefore, an
informed opinion on the hows and whys of keeping the Assembly in
suspended animation should be formed by considering the relevant
legal principles, and not the ultimate fate of the fifth Assembly.
In
this post, we discuss the limited point of how Delhi’s unique
governance structure, coupled with the role of its Lt. Governor, may
have contributed to the suspended animation episode.
Status
of Delhi
Delhi’s
position in our constitutional scheme has over the years undergone
numerous changes. Its historical evolution is described eruditely by
a 9-judge Bench of the Supreme Court (“SC”) in NDMC
v. State of Punjab

[pp.47-48]. Relevant for the purposes of this post is its present
status, specifically the following:
  1. Delhi
    is a Union Territory (“UT”) administered by the Union through an
    Administrator called the Lt. Governor of Delhi [Schedule I of the
    Constitution read with Article 239A(1) and Article 239(1)];
  1. It
    has a Legislative Assembly [Article 239AA(2) & (3) read with
    Part II of the Government
    of National Capital Territory of Delhi Act, 1991
    (“GNCTD
    Act”)]; and
  1. It
    has a Council of Ministers (“CoM”) to aid and advise the Lt.
    Governor of Delhi in the exercise of his functions [Article 239AA(4)
    read with Part IV of the GNCTD Act].
NDMC
had noted that “various UTs are in different stages of evolution”
and that “some are on their way to full Statehood” [p.59]. In
other words, while all the UTs in existence today fall within point
(i), Delhi and Puducherry are the only UTs which exhibit points (ii)
and (iii) and Delhi is the only UT which has been conferred points
(ii) and (iii) through Constitutional provisions [pp.5-6]. However,
NDMC also
cautioned that in spite of its evolutionary one-upmanship over the
other UTs, Delhi remains a UT and should not be equated with a State
[p.31].
The
analysis of NDMC
regarding Delhi’s partial evolution towards Statehood, i.e.,
exhibiting certain trappings of Statehood (having a Legislative
Assembly and a CoM) and yet being subordinate to the Union by virtue
of its status as a UT, is amply borne out by a bare reading of
Article 239AA(3), Article 246(4) and Section 49 of the GNCTD Act. We
believe that this partial evolution has resulted in certain ‘mutant’1
constitutional conundrums which are peculiar to Delhi.2
A ripe example of a latent mutation manifesting itself in the recent
past is Navendra
Kumar v. Union of India
,
where a prima facie
absurd consequence (i.e., the Union’s competence to create an
investigating agency for the entire country through a law enacted
specifically for Delhi) was successfully challenged before the
Gauhati High Court.3
The suspended animation episode has thrown up a more patent ‘mutant’,
which has expressed itself through the role of the Lt. Governor of
Delhi as envisioned under Article 239AA(4).
Position
of the Lt. Governor
Article
239AA(4) provides that a CoM will aid and advise the Lt. Governor of
Delhi in the discharge of his functions. The proviso to Article
239AA(4) reads as follows:
Provided that in
the case of difference of opinion between the Lieutenant Governor and
his Ministers on any matter, the Lieutenant Governor shall refer it
to the President for decision

and act according to the decision given thereon by the President and
pending such decision it shall be competent for the Lieutenant
Governor in any case where the matter, in his opinion, is so urgent
that it is necessary for him to take immediate action, to take such
action or to give such direction in the matter as he deems
necessary.
(emphasis added by authors)
Article
239AA(4) expressly recognises the possibility of the Lt. Governor
disagreeing with the recommendations of his CoM. However, unlike the
proviso to Article 74(1), the proviso to Article 239AA(4) apparently
has enough significance to colour the lead provision itself. In Devji
Vallabhbhai Tandel v. Administrator of Goa
,
a 3-judge Bench of the SC was considering the powers of the
Administrator of a UT vis-à-vis his CoM in the context of Section
44(1) of the Government
of Union Territories Act, 1963
(which is analogous to Article
239AA(4) including its proviso). The SC held that the Administrator
of a UT is never bound by the advice of his CoM, and that in the
event of a disagreement between the Administrator and his CoM on any
matter, the Administrator is required to refer the matter to the
President for his decision [p.7].
Since
Section 44(1) is textually analogous to Article 239AA(4), there is no
reason for the rationale of Tandel
to be inapplicable in the context of Article 239AA(4) and the Lt.
Governor of Delhi. Therefore, Tandel
suggests that the Lt. Governor is empowered to disagree with his CoM
on any issue. However, two piquant questions arise at this juncture,
on which Tandel is
starkly silent:
  1. When
    the Lt. Governor has a difference of opinion with his CoM’s
    recommendations, is it an expression of his own disagreement or the
    Union’s disagreement which is voiced through him?; and
  1. Merely
    because the Lt. Governor can
    disagree with his CoM on any issue, is there no legal fetter on when
    he can disagree?
Game-Maker/Game-Breaker
On
point (i), the GNCTD Act provides some guidance. This Act, which
supplements the provisions of the Constitution relating to the Delhi
Assembly and its CoM, specifically mentions actions which the Lt.
Governor can take only after prior approval of the Union [Sections
7(5), 19, 30(1)(b), 33(1) and 43(1)]. Interestingly, disagreeing with
the CoM’s recommendation is not a specific part of this category.
Does this imply that when the Lt. Governor disagrees with his CoM on
any matter which is not covered by the Sections mentioned above, it
is his own disagreement and not the disagreement of the Union which
results in the matter being referred to the President for the Union’s
opinion?4
If that be so, it would mean that when erstwhile Chief Minister
Arvind Kejriwal submitted the Delhi CoM’s recommendation to
dissolve the Assembly, it was Lt. Governor Najeeb Jung’s
disagreement with this recommendation and not the disagreement of the
Union CoM which led to the matter being referred to the President.
In
that case, point (ii) is of critical importance. The absence of any
fetters on when the Lt. Governor can disagree with his CoM would
imply that he can disagree with his CoM’s recommendations at will.
Such an interpretation places the Lt. Governor in the position of a
game-maker who decides when the Delhi CoM’s recommendation needs to
be approved or trumped by the Union CoM. Of course, it may be argued
that Article 14, which predicates against unreasonable and arbitrary
action, mandates that the Lt. Governor temper his decisions with
rationality and apply his mind to the relevant facts and
circumstances of every recommendation before disagreeing with his
CoM. Whether applying one’s mind to the prevailing political
circumstances in Delhi could justifiably have led to the Lt. Governor
disagreeing with his CoM’s recommendation for dissolving the
Assembly requires a separate discussion and we have not covered those
aspects in this post.
However,
the above analysis seems to suggest that Delhi’s present governance
structure places the Lt. Governor on a pedestal which is very
different from that of the President or the Governor. Keeping
political considerations aside, the suspended animation episode has
provided us a wonderful opportunity to understand the contours of
this hitherto not-so-prominent ‘mutant’.
—————————————————————————-
1
These issues, much like the mutants from the comic series X-Men,
exhibit traits which are different from the conventional, thrive
within the organic framework which created them and may not always
be understood for who/what they are, but need not necessarily be
treated as vices and sought to be cured unless their potential is
abused.
2
Theoretically, Puducherry should
also manifest such mutations. However, being the national capital of
India makes Delhi a more thriving environment for mutants.
3
The correctness of Navendra
Kumar
is beyond the scope of
this post.
4
Section 49 of the GNCTD Act may theoretically come into play here,
since this provision allows the President to give directions to the
Lt. Governor. However, unless there is a singular sweeping direction
under Section 49 that covers every conceivable recommendation of the
Delhi CoM, the Lt. Governor will more often than not have a free
hand.

(The authors are advocates based out of New Delhi. Part Two of the post will appear tomorrow)
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