Much to the dismay of Kejriwal’s Government, the High Court of Delhi has given a finding that the Lieutenant Governor of Delhi is not bound to take the advice of the elected territorial Government. In a separate Petition before the Supreme Court, the Kejriwal Government had already sought a declaration of powers of the Delhi Government as against the Central Government. After the Delhi High Court’s judgment, the Supreme Court has accepted to hear the likely appeal along with the original Petition filed before the Supreme Court.
Though the ruling of the Delhi High Court is largely seen as a major political set back to the Delhi Government, there is much more that needs to be discussed. With all due respect to the wisdom of the Delhi High Court, it is my humble opinion that the view taken by the Court is narrow and founded on mistaken premises of law. I would like to substantiate my view with jurisprudential and Constitutional aspects.
The ruling is based on the Constitutional status accorded to the Union Territories in general. According to Article 239 of the Constitution of India, the Union Territories are governed by the President of India (read: Central Government) through the administrator appointed by him. It is due to this reason that Union Territories in general do not have a federal polity – that is, a territorial legislature and a territorial government like the ‘States’.
However, with respect to Delhi, it is Article 239AA that applies. Article 239AA is a ‘Special provision with respect to Delhi’. As against the general and simple provision contained under Article 239, Article 239AA lays down the political status of Delhi very elaborately. It provides for a legislative Assembly and Council of Ministers at Delhi and declares their powers in detail. Since Article 239 and Article 239AA are directly inconsistent with each other, one provision has to prevail over the other. 
As accepted by Courts, jurisprudentially, ‘where there is a general provision and a special provision dealing with the same subject matter, the special provision must be read as a proviso (Exception) to the general provision. In so far as it is inconsistent with the special provision, must be deemed not to apply’.
So when dealing with the Constitutional status of Delhi, the general provision under Article 239 is deemed not to apply. It is enough to take recourse only to the provision under Article 239AA to determine the relationship between the elected Government of Delhi and the Lieutenant Governor nominated by the President.
Article 239AA takes away the powers of the Delhi assembly and Government with respect to certain important ‘State subjects’ and empowers them to deal with all other subjects in the ‘State list’ and ‘Concurrent list’ like ‘States’.
Speaking about the powers of the Lieutenant Governor of Delhi, Article 239AA provides that there shall be a Council of Ministers headed by the Chief Minister to aid and advise the Lt. Governor in exercise of his functions, except in matters he is required by law to act in his discretion.
In law, express mention of one thing implies exclusion of all other things. So except where the Lt. Governor is required to act in his discretion, he has to accept the advice tendered by the elected Government.
The circumstance under which the Lt.Governor can act in his discretion is also laid down under Article 239AA. In case of difference of opinion, the Lt. Governor has to refer the matter to the President for his decision. Only when the matter referred to the President is so urgent, the Lt.Governor can take a decision as interim measure until the President acts upon it. So it is crystal clear that the Lt. Governor has little suo moto (independent) powers. The pre-requisite of such exercise of power are:
  1. An advice of the Council of Ministers headed by the CM;
  2. Difference of opinion between the Lt.Governor & the Council;
  3. Reference of the matter to the President;
  4. The mater is so urgent that interim measure is essential till the President acts upon the matter.
This power does not exist if the matter is not so urgent and the power ceases to exist when the President acts upon it. So, to exercise a suo moto power, there must be an advice of the Delhi Government at the first place. Even when it is referred to the President of India, the Lt. Governor can act only if it is so urgent that it is not possible to administer the territory without any interim measure. So the Lt. Governor has to either act upon the advice tendered by the Delhi Government or by the Government of India but he has no independent powers.
But when can he refer a matter to the President of India? It is only when a difference of opinion arises, can he make such reference. In my opinion, he cannot normally make such reference except when the matter is so grave and important that there is no other alternative efficacious remedy available. This is because, the first part of the clause (4) of Article 239AA says there shall be a council of Ministers headed by the CM to aid and advice the Lt.Governor. This is pari material (identical) to the powers of Governors of States provided under Article 163 of the Constitution of India. This is in consonance with well established principle of law that identical laws must be interpreted in the same manner.
Moreover, purposive meaning has to be given to the Special provision under Article 239AA. There are several public authorities including Government Departments, educational institutions, Government of Delhi undertakings and statutory institutions established, owned, controlled and substantially financed by the Government of Delhi. The Delhi High Court’s view is likely to undermine all these institutions and render them toothless. There is no purpose in having all these institutions without any powers.
Considering all these jurisprudential and Constitutional aspects, I am hopeful that the Supreme Court sets the order of the High Court aside and gives a more meaningful purpose to Article 239AA and the authorities established by the same.