Justice A Bhushan's Concurring Opinion in Plain English
Justice Bhushan gave a separate but a concurring opinion. He invoked several constitutional principles as the underlying rationale for interpreting the impugned opinions. He emphasised literal interpretation as the primary rule of interpretation unless any ambiguity rises. However he recognized the importance of purposive interpretation given the nature of the constitution as a living document. With respect to the insertion of Article 239AA, he stressed that the purpose was to permit a democratic and republican form of government.
On the question of division of legislative power between the Union and Union Territories, he referred to Article 1(2) and Article 245(1) of the Constitution of India. Accordingly, it is clear from a plain reading of the provisions that Union Territories do not have any specific legislative powers flowing from the three lists under the Eight Schedule of the Constitution. The creation of a legislature in 1991 via the 69th Amendment Act did not create a full fledged legislature nor give Delhi the status of a state. Therefore the constitutional intent was clear that the parliament has the power to make laws with respect to Delhi under the state list and concurrent list.
With respect to executive power, he referred to Article 73(1) which does not permit the Union to exercise power in areas where the legislature of the state has the power to make laws. Since there is no reference to the Union Territories, it was clear that the Union Territories are administered by the President. It is also provided by Article 239AA(4) which grants LG the power to refer a matter to the President in case of a difference of opinion. Section 49 of The Government of National Capital Territory of Delhi Act, 1991 provided for primacy of President and made the LG and the Council of Ministers subservient to the directions of the President.
With respect to the Article 239AA (4) which Justice Bhushan referred to as the bone of contention between the two parties, he said that the “aid and advise” of the Council of Ministers is binding upon the LG except when he makes a reference to the President. Consequently, “aid and advise” was different from Article 163 of the Constitution wherein the Governor does not have any special power of reference. Given the proviso to Article 239AA(4) and Section 44 of the Government of Union Territories Act which permits the LG to refer any matter to the President, it was clear that the constitutional scheme was different from Article 163 and Article 74. He nonetheless highlighted the importance of LG respecting the views of the elected members of the legislative assembly.
As for the interpretation of “any matter”, J. Bhushan was categorical that “any” implied a wide import and any form of restrictive reading was not permissible. With respect to the question of concurrence, he held that the LG is required to be informed but concurrence is not necessary.
Justice Bhushan gave a literal interpretation to the constitution and did not clarify under what conditions the LG’s power will be considered exclusive.