Chandrachud J’s Concurring Opinion in Plain English

Justice Chandrachud wrote a separate opinion concurring with CJI Dipak Misra and Justice Ashok Bhushan to hold that the  Chief Minister and not the LG is the executive head of the Delhi Government.

Similar to CJI Dipak Misra, he held that Delhi cannot be seen as a ‘State’ owing to binding precedent in two 5 judge bench decisions in  T.M. Kanniyan v Income Tax Officer, Pondicherry (1968) and  NDMC v State of Punjab (1996).

However, he noted that the status of Delhi is special and different from Article 239 (1) which deals with the administration of the Union Territory.  Alluding to the opening words “Save as otherwise provided by Parliament by Law” under Article 239 (1), he said that a parliamentary law can provide for a departure from the Article 239(1), which makes LG the executive head for the Union Territory

He added that the introduction of  Article 239AA mandated the existence of a legislative assembly and  Council of Ministers to govern the affairs of the National Capital. He said that “representative” and “cabinet form of government” were made central to Delhi and must be respected.

He said that any interpretation which enhances the basic features of the Constitution- “representative governance” and “cabinet form of government” must be chosen over other forms of interpretation.  Thus, he held that under Article 239 AA, the executive power of the Delhi government is co-extensive with the legislative power and the LG is bound by the aid and advice of the Council of Ministers on matters where Delhi Government has the power to make laws. He noted that giving power to the LG to act independently would violate the principles of “representative government” and “cabinet form of government” which forms the core of Article 239AA.

He said that LG’s duty to act according to the advice of the Council of Ministers has to be balanced with the proviso to Article 239AA(4) which allows LG to reserve “any matter” to President in case of difference of opinion.

Unlike Dipak Misra, he illustrated on the “scope of restrictions” on this independent exercise of power by the LG.  He observed that only matters falling within “vital national interests” can be reserved and prior to reference,  a  3 step process under Transaction of Business Rules 1993 must be followed.

Justice Chandrachud’s 175-page opinion established a three-step process: the LG has to try to resolve the difference with the concerned Minister; then the LG has to try to resolve it with the Council of Ministers and only as a last resort, he can refer the matter to the President.