Guest Post by Shraddha Kulhari and Sujoy Chatterjee

In an earlier post, we had discussed the current constitutional status of the
National Capital Territory of Delhi vis-à-vis Statehood. To summarize, our
understanding was that Delhi, despite having trappings of a State such as a
democratically elected Legislative Assembly and a Council of Ministers,
remained a Union Territory and was accordingly under the overall control of the
Union Government. As a consequence thereof, as also because of the political
significance of being the national capital, we discussed how Delhi was capable
of manifesting certain ‘mutant’ constitutional issues.

One such ‘mutant’ identified by us was the position occupied by
the Lt. Governor of Delhi in the governance structure of Delhi. We had concluded
that, unlike the President of India or the Governors of the States, the
position of the Lt. Governor of Delhi under the present constitutional scheme was
unique and on a different footing. A Division Bench of the Delhi High Court has
arrived at a similar conclusion in the judgment dated 04.08.2016 in
Government of National Capital Territory
of Delhi v. Union of India [W.P. (C) No. 5888/2015] and connected matters.

The Judgment

The common lis in the
batch of petitions was broadly with regard to the executive control of the
administration of Delhi. The factual background to these petitions was also
common, to the extent that they pertained to the political storm which has been
raging over the past several months about the Lt. Governor/Union Government
allegedly attempting to intervene in certain matters which fall within the
domain of the Government of NCT of Delhi, and almost as a reprisal the Government
of NCT of Delhi allegedly by-passing the Lt. Governor in certain matters which
require the Lt. Governor’s involvement. The High Court, while addressing the
legal issues arising therefrom, framed an issue as follows:

“Whether the Lt. Governor is bound to act
only by the aid and advise of the Council of Ministers (of the Government of
NCT of Delhi) in the exercise of his functions, in relation to matters with
respect to which the Legislative Assembly of NCT of Delhi has power to make
laws?”

After a detailed analysis of, amongst others, Articles 239 and
239AA of the Constitution, the Balakrishnan Committee Report on the
Re-organization of Delhi, the Parliamentary Debates on the 69th
Amendment to the Constitution and the Transaction of Business of the Government
of National Capital Territory of Delhi Rules, 1993, the High Court concluded
that the Lt. Governor of Delhi is not bound by the aid and advise of the
Council of Ministers of the Government of NCT of Delhi. The High Court further
held that it is mandatory for the Council of Ministers of the Government of NCT
of Delhi to communicate its decisions to the Lt. Governor and that orders
thereon could be issued by the Government of NCT of Delhi only if the Lt.
Governor did not take a different view. To arrive at this conclusion, the High
Court relied heavily on the judgments of the Supreme Court in NDMC v. State of Punjab and Devji Vallabhbhai Tandel v. Administrator of Goa, both of which
specifically discuss the implications of an area being a termed as a Union
Territory.

The judgment of the High Court is significant, inter alia, in terms of the fact that: (i)
it attempts to draw a distinction between precedents rendered in the context of
governance in the Union/States and governance in the Union Territories; and
(ii) subject to being corrected, it may be the first decision from the higher
judiciary which specifically deals with the role of the Lt. Governor of Delhi
in terms of Article 239AA and other applicable provisions of law.

Issues Left Open

From a first brush reading of the judgment, it appears that
certain questions raised by us in our earlier post remain open to surmises and interpretation.
One such issue is with regard to whether the Lt. Governor’s disagreement/difference
of opinion with the Council of Ministers on a particular decision is an expression
of his own disagreement or the Union Government’s disagreement which is expressed
through him. Of course, the subject-matters of the petitions before the High
Court were such that the High Court was not required to delve into this particular
issue. 7 out of the 9 petitions before the High Court were challenges to the
constitutional validity of notifications/orders/policy directions issued by the
Government of NCT of Delhi, which notifications/orders/policy directions had
been issued without having been placed before the Lt. Governor of Delhi for his
views/concurrence – therefore, the question of the Lt. Governor having taken a
different view from the Council of Ministers did not arise. Perhaps the issue of
the Lt. Governor’s disagreement/difference of opinion may also become a bone of
contention between the Government of NCT of Delhi, the Lt. Governor and the Union
Government in the days to come.

In this regard, the Balakrishnan Committee Report on the
Re-organization of Delhi become relevant. The Balakrishnan Committee had, inter alia, observed as follows:

“If the administration of the natural capital
is divided into rigid compartments of State field and Union field, conflicts
are likely to arise in several vital matters, particularly if the two
Governments are run by different political parties. Such conflicts may, at
times, prejudice the national interest”

In view of the aforesaid observation, it appears that despite
Delhi having evolved partially towards Statehood, the premise behind this
evolutionary governance structure remained “national interest”. If that be so,
it adds credence to the theory that the Lt. Governor’s disagreement/difference
of opinion with Delhi’s Council of Ministers may merely be an expression of the
Union Government’s disagreement which is expressed through the Lt. Governor.

Jurisdictional
Challenge

The judgment at the very outset addresses the challenge which
was mounted by the Government of NCT of Delhi to the jurisdiction of the High
Court to hear this batch of petitions. Curiously, the Government of NCT of
Delhi was itself the Petitioner in two petitions [W.P. (C) No. 5888/2015 and
W.P. (Crl) No. 2099/2015] and had invoked the jurisdiction of the High Court by
filing the said petitions in May 2015 and September 2015 respectively.
Nevertheless, in April/May 2016, by which time extensive arguments were already
canvassed before the High Court and the hearing in the matters were about to be
concluded, the Government of NCT of Delhi challenged the jurisdiction of the
High Court to proceed with these petitions.

In its jurisdictional challenge, it was contended by the
Government of NCT of Delhi that the disputes in this batch of petitions were
essentially between the Governments of the Union and of Delhi respectively;
such disputes were federal in nature and could only be adjudicated upon by the
Supreme Court in an original suit filed under Article 131. Prima facie, the timing of the jurisdictional challenge was such
that it creates, according to us, an impression of attempted forum-shopping, i.e.,
where a party tries its luck by approaching a particular forum, and having
inferred during the course of the hearings that the Bench is not inclined to
grant relief, seeks to wriggle out of an impending unfavourable judgment by then
approaching a different forum.

The High Court, rather than non-suiting (pun unintended) the
Government of NCT of Delhi on the technical and tautological premise of Delhi
being a Union Territory (and consequently being ineligible to invoke Article
131), relied on a combination of reasons for rejecting the jurisdictional
challenge. Factors such as (i) the Government of NCT of Delhi had itself
invoked the jurisdiction of the High Court in W.P. (C) No. 5888/2015 and W.P.
(Crl) No. 2099/2015; (ii) the jurisdictional challenge was raised at a time
when the hearings were almost concluded; (iii) the hearings in W.P. (C) No.
5888/2015 and W.P. (Crl) No. 2099/2015 had already concluded when the
jurisdictional challenge was raised; and (iv) the Supreme Court, in SLP (Crl)
No. 282/2016, had requested the High Court to conclude the matters by July,
2016; weighed heavily on the High Court’s decision-making. The High Court did independently
conclude that the disputes at hand were not of such a nature as would oust
Article 226. However, in view of previous suits which have been held
maintainable under Article 131, we submit that the test of whether a dispute
falls outside the ambit of Article 226 may not be an accurate way for
determining whether the dispute is covered under Article 131.

The Road Ahead: Battleground
SC

According to media reports, the Government of NCT of Delhi shall
be challenging the judgment of the High Court by way of an SLP before the
Supreme Court (See here and here). The Government
of NCT of Delhi is not shying away from availing all legal recourses available
to it, and its Original Suit under Article 131 is already pending before the
Supreme Court. As expected, counsel for the Union have already raised
objections to the maintainability of parallel proceedings (See here) and shall surely,
if required, raise objections on merits as well.