Mr. Subramanium alleged that the LG has misused the discretion in this proviso to block governance to such an extent that decisions from appointment of teachers in municipal schools to opening of mohalla clinics have been pending for over a year. The Chief Secretary and other officers simply forward the files to the LG, where it remains indeterminately.

“LG thinks he is suprema lex (supreme law) on six grounds. One, that Delhi is still a Union Territory. Two, Parliament makes the law for Delhi under Article 246 (4) of the Constitution. Three, Article 239AA has brought in no change to Delhi’s status as a Union Territory simpliciter. Four, the proviso gives him the power of defiance. Five, he has to concur to every decision made by the Delhi government. Six, he can take independent decisions. Now, did the 69th Constitutional Amendment contemplate two parallel governments like this?” Mr. Subramanium asked.

He submitted the proviso envisaged a “great confidence” to evolve between the Chief Minister and the LG. “But how can there be confidence when the LG holds meetings with government officers without the Chief Minister?” Mr. Subramanium asked.

“So, in daily governance and implementation of laws, LG says he is your boss,” Justice A.K. Sikri remarked from the Bench.

“It would have been allright if he had said just that. He is actually saying that we do not count,” Mr. Subramanium responded.

In his day-long submissions before the Bench, Mr. Subramanium said the situation of governance in Delhi had come to such a turn that “department ministers are unable to get an opinion from their secretaries and civil servants on issues of governance.” “They have to literally fall at their feet,” Mr. Subramanium submitted.

Limited to specific cases

He argued that the “extraordinary discretion” of the LG is confined to special circumstances. At this point, Chief Justice Misra agreed that the “difference of opinion” between the LG and the Delhi government should be “authentic.”

The senior advocate submitted that the purpose of Article 239AA was to “provide some kind of voice to the people, some kind of governance to the people.” The amendment was not just a structural addition to the Indian Constitution, but based on egalitarianism.

“We are not contesting parliamentary supremacy. We acknowledge it. But still there must be an elbow room for the Legislative Assembly of an elected government to function...Everything we do does not require the concurrence of the LG,” Mr. Subramanium submitted.