The conflict between the Lieutenant Governor of Delhi and the Chief Minister is a hotly contested topic and has occupied the limelight in the past few days. There have been supporters vouching for the relative stands taken by them, at every nook and corner of the space provided by media and elsewhere. However, a common ground can be seen in almost all of these debates and discussions – that of heavy political overtones.
When seen in the right perspective, the matter is more about Constitutional interpretation than a frantic AAP or BJP supporter hopping for primetime space. Thus, in order to be a critique, we must delve through the voluminous mother document and dig out the relevant provisions for the present purpose and thereafter attempt to holistically understand the same.
Through this Article, an effort has been made to present a perspective that is counter to the article titled ‘More constitutional than political’ published in The Hindu on May 23, 2015.
Article 239 of the Constitution
“Administration of Union territories:
(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
Article 239AA of the Constitution
“Special provisions with respect to Delhi:
(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor.
(2) (a) …
(b) … all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.
(c) … and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament.
(3) (a) …
(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.
(c) …the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:
Provided that …
Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers …, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:
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.
… (8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly,…
Article 239AB of the Constitution
“Provision in case of failure of constitutional machinery:
If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—
(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or
(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.”
Interpretation of the provisions
The above provisions are unambiguous as to the extent of control to be exercised by the President through the Lieutenant Governor on the National Capital Territory of Delhi. We shall now deliberate upon each point separately thereby attempting to arrive at a conclusion which is in consonance with the supreme law of the land.
Constitutional status of Delhi
In as much as the uncertainty prevailing over the constitutional position of Delhi, it can be irrefutably understood from the words of Article 239AA, inserted vide the Constitution (Sixty-ninth Amendment) Act, 1991. Article 239AA in no uncertain terms mentions Delhi to be a Union Territory. Further, in its judgment in the case of Government of NCT, Delhi v. All India Central Civil Accounts, (2002) 1 SCC 344,348 the Hon’ble Supreme Court has held that: “Even though this article confers special status on the Union territory of Delhi, Delhi remains a Union territory and does not acquire the status of a state.”
Responsibility of the administration of Delhi
Having thus cleared the air of ambiguity prevailing over the Constitutional status of Delhi, we shall now move to the next area of concern, i.e. the administration of Delhi. As per the relevant portion of Article 239 as quoted above, the responsibility of carrying out the administration in Delhi has been vested upon the President who shall carry out this responsibility through an administrator appointed by him. The said appointed administrator in the case of Delhi is the Lieutenant Governor. A basic reading of the relevant portions of Articles 239, 239AA and 239AB points to the expectation of cohesion and assimilation for achieving efficient and effective administration with a tilt towards greater Union control.
The whip hand: Lieutenant Governor versus Chief Minister
We shall now move on to the core of the conflict by deliberating upon Article 239AA(4) which though mandatorily provides for a Council of Ministers, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion; the scope of the said provision has been limited by the Proviso appended thereto. The Proviso stipulates 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.
Had the Proviso not been annexed to Article 239AA(4), the stipulation that seeking the aid and advise of the Council of Ministers with the Chief Minister at the head would have been mandatory, would not be challenged. But even then, whether such aid and advise has to be mandatorily complied with by the Lieutenant Governor could be subject to interpretation. However, what could or could not have been is beyond the scope of the present article. We would thus limit ourselves to analysing whether the proviso has any impact on the said provision and if yes, what would be the correct understanding.
Rules of statutory interpretation in relation to a ‘Proviso’
In the case of Sunadaram Pillai v. Pattabiraman, (1985) 1 SCC 591, Fazal Ali, J had summarized the purposes of a proviso and held that: “A proviso may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable.” Further, as held in Kedarnath Jute Manufacturing Company Limited v. Commercial Tax Officer, AIR 1966 SC 12, “The normal function of a proviso is to except something out of the enactment or to qualify something which but for the proviso would be within the purview of the enactment.”
If the enacting portion of a section is not clear a proviso appended to it may give an indication as to its true meaning. As already discussed above, Article 239AA does not by itself clarify whether it would be mandatory for the Lieutenant Governor to accept the aid and advise rendered by the Council of Ministers with the Chief Minister at head. In such a scenario, the proviso appended to the said provision clarifies the position. That, in the words of Lord Herschell is precisely what a proviso is intended for, when in the judgment of West Derby Union v. Metropolitan Life Assurance Society, (1897) AC 647, he quoted that: “Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it.”
Demystifying the hoopla
Even considering that a particular law or rule or regulation provides for a stand that is incompatible with the constitutional position on the matter, and provides for overpowering powers to the Legislature of Delhi it ought to be kept in mind that it is for the statutory enactments to subscribe to the constitutional provisions and not the other way round. The Legislature which was created by the Constitution cannot be reasonably argued to have been bestowed with the power to surpass the source which created it. The Constitution gives the power to the concerned Legislature to supplement its provisions and not to supplant it.
The first major climacteric pertaining to contestation for dominance as between the Lieutenant Governor and the Chief Minister of the NCT of Delhi is bound to have far-reaching consequences. We shall wait and watch as the drama unfolds. Who knows, a ‘Presidential Rule’ may be in store for Delhi or this may call for yet another Constitutional Amendment!