Collective Responsibility – II

Source: The Hitavada      Date: 16 Jul 2018 10:44:52


 

 

 

 

 

 

 

 

 

 

In the first judgement, the provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive Government and another states the interpretation of the Constitution has to be purposive taking into consideration the need of time and Constitutional principles. The Parliament has power to make laws for NCTD in respect of any of the matters enumerated in State and Concurrent Lists.


IN THIS column last week, while going through the detailed judgement of the case – Government of Delhi v. Union of India and Another delivered on July 4, 2018, attempt was made to cover salient points of the first of the separate and concurring judgements of the CJI Dipak Misra on his and Justice A. K. Sikri and Justice A. M. Khanwikar’s behalf. In this piece, important points of other two judgements by Justice Dr. D.Y. Chandrachud and Justice Ashok Bhushan are being pointed out.
Dr. D.Y. Chandradhud J.:


The constitutional scheme indicates several features in relation to the North County Transit District (NCTD) which have resulted in the conferment of a constitutional status which falls short of the trappings of full statehood. The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. An elected Government reflects in a democracy, the aspirations of the people who vote to elect their representatives.


The elected representatives carry the responsibility of giving expression to the political will of the electorate. In a democratic form of Government, real power must subsist in the elected arms of the State. The relationship between the Council of Ministers and the titular head of State is governed by the over-arching consideration that the real power and substantive accountability is vested in the elected representatives of the people. The principle of aid and advice is in a constitutional sense intended to strengthen the constitutional value of representative Government and of governance which is accountable and responsive to the electorate.


The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive Government.


The executive power of the Government of NCT is co-extensive with the legislative power. The principle of aid and advice under clause 4 of Article 239AA extends to areas where the LG exercises functions in relation to matters where the legislative Assembly has power to make laws.


In consequence, those matters on which the legislative Assembly does not have the power to enact legislation are not governed by the principle of aid and advice.
Similarly, the LG is not subject to aid and advice on matters where he is required to exercise his own discretion by or under any law.


It may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘Every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union Territory, thereby resulting in the negation of the Constitutional Structure adopted for the Governance of Delhi.


Before the LG decides to make a reference to the President under the proviso to Article 239 AA (4), the course of action mandated in the Transaction of Business Rules must be followed. The LG must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalatedto the President.
Ashok Bhushan J.:


According to Justice Ashok Bhushan, the interpretation of the Constitution has to be purposive taking into consideration the need of time and Constitutional principles. The Parliament has power to make laws for NCTD in respect of any of the matters enumerated in State and Concurrent Lists. The Legislative Assembly of NCTD has also legislative power with respect to matters enumerated in the State List (except excepted entries) and in the Concurrent List.


The Legislative Assembly of NCTD being representing the views of elected representatives, their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President. The power given in proviso to sub-clause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the LG on valid reasons after due consideration when it becomes necessary to safeguard the interest of the Union Territory.


LG has to be kept informed of all proposals, agendas and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi.


From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration, so that rights of all can be protected. (Concluded)