Day 15 Arguments

6th December 2017

Mr. Gopal Subramanium, appearing for the NCT, continued his rejoinder before the 5-Judge Constitutional Bench hearing the case pertaining to the Special Status of Delhi.

In the hearing on 5.12.2017, Mr. Subramanium argued for establishing Delhi as a special Union Territory with the Council of Ministers having substantive legislative-executive powers. Today, on the last day of the hearing, Mr. Subramanium and Rajeev Dhavan continued to emphasize the special status of Delhi in the constitutional scheme of things and how it could not be clubbed with other Union Territories.

Mr. Gopal Subramanium continued his rejoinder from yesterday. He began by responding to Mr. Maninder Singh’s contention that a constitutional amendment through Article 239AA crystallised NCT’s position as a Union Territory. He responded that the constitutional amendment was a necessary requirement for creating a legislative assembly.

Justice Sikri observed that according to the Balakrishnan Committee Report, the reason for the constitutional amendment was to make it difficult to change the existing scheme under which Delhi functioned. Mr. Subramanium responded that the Report was only an external source that could be relied on sparingly. Executive authority for the NCT of Delhi was vested in the Council of Ministers, he added.

The scope of the proviso to Article 239AA(4) was circumscribed by three principles: constitutional implication, trust and silence. He pointed towards the transaction of business rules that made Council of Ministers responsible for executive acts of the Department, to argue that real executive powers did rest with the Council of Ministers.  He reiterated that the copy of files had to be sent to the LG for intimation and not for concurrence. He ended by submitting that the Balakrishnan Committee Report which underlined that the Centre had more powers had to be read with the caveat that such powers could be exercised only in cases of need.

Then Mr. Rajeev Dhavan, representing the NCT of Delhi, advanced the argument that co-operative federalism was a basic structure of the Constitution which had to be respected in this case.  He added that the ratio in the Ram Jawaya Kapoor  might not apply to every Union Territory but it did apply to a Union Territory that had an elected legislature. Hence the Council of Ministers would have a co-equal executive power since NCT had an elected legislature. With this, the arguments concluded and the matter was reserved for judgment.

(With contributions from Ayush Puri)