The Central government’s stand before Supreme Court was that while special status has been conferred on Delhi by the Constitution by creation of a Legislative Assembly, the President will continue to remain its “executive head”, acting through the Lt Governor. Representing the Centre, Additional Solicitor General of India Maninder Singh said the special provisions mentioned “Lieutenant Governor”, and not the “Council of Ministers”, as responsible for the administration of the Union Territory (UT).
Singh argued that since Delhi continues to be a UT, “its governance shall be regulated by provision of Article 239”, which states that all UTs will be governed by the President. The Centre submitted, “…to devolve exclusive legislative or exclusive executive power on the Legislative Assembly or Council of Ministers of the NCT of Delhi would result in elevating a Union Territory to the status of a State, a demand rejected by the Constitution-makers on several instances. That apart, it would be impermissible under any interpretation of the constitutional text, and also contrary to the constitutional mandate.”
On this point, it also referred to Article 53 and 73 and stated that “nowhere in the Constitution, including Articles 239A or 239AA, it has been stipulated that executive power of a Union Territory shall vest in the Council of Ministers/Legislative Assembly”.
The Centre argued that according to provision under the Government of NCTD Act, the Constitution “does not stipulate any automatic conferral of executive power”. It said that the aid and advice rendered by the Council of Ministers is “not binding” upon the L-G, and that “he is empowered to form an opinion that differs from the opinion of the Council of Ministers”. In such a situation, the Centre stated, the proviso to Article 239AA(4) comes into play, which provides that in case of such difference of opinion, the President’s decision will be final.
The Centre also argued that Article 239AA(4) employs the phrase “Lieutenant Governor and his Ministers”, which implies that it is the “Lieutenant Governor” — and not the “Council of Ministers” — who is responsible for Delhi’s administration. A close reading of Article 239 with Article 239AA, along with Section 44 of GNCTD Act, 1991, would reveal that the expression ‘Executive action of the Lt. Governor’ and not the ‘Executive action of NCT of Delhi’ has been stipulated in the said provisions, it had argued.