Senior counsel, Gopal Subramanium today told the Constitution bench that Articles 239 (1), 239A(1), and 239 AA(4) must be understood as an organic whole.

He said that there is no anomaly and there is no need to assume that investiture of power is lacking. LG is just a titular head as it is the President who appoints the council of ministers in Delhi, he suggested.

Describing the binding nature of "aid and advice " as the cardinal principle, he said the term " any matter " mentioned in the proviso to Article 239AA refers to the plenitude of legislative powers. The boundary between "aid and advice " and the proviso to Article 239AA cannot make the former meaningless, he said.

Referring to silences in the Constitution, he said it is important to say that the cabinet form of government is responsible to the legislature in Delhi.

He made a novel submission that fundamental rights would include right to participate in governance through the elected assembly.

The senior counsel adopted a three-pronged approach to justify the aforesaid conclusion -- firstly, Subramanium considered the constitutional provisions imbibed in Article 239 AA from the viewpoint of the citizen, in so far as it is a “benign provision” giving the citizens a voice; secondly, he endeavoured to harmonise the written text of the Constitution with the silences within the text, saying that it is impossible to say that a cabinet form of government which is answerable to the Legislative Assembly of Delhi cannot co-exist with the Union Government; and thirdly, he sought to oscillate between purposiveness and empiricism in stating that governance is the purpose and law-making is the function, but the essence of the Constitution must form the foundation of all action.

Quoting that “with the appearance of the council of ministers, the king hid behind the curtains”, the senior advocate advanced that by virtue of Article 239AA, the Legislative Assembly has the power to enact laws for the NCT of Delhi and hence, the Council of Ministers headed by the Chief Minister is the de facto executive head in respect of the UT.

Subramanium cited clause (4) of Article 239AA in so far as it lays down that the Council of Ministers is “to aid and advise the LG in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion” and said that the latter part of the provision dealing with the discretion of the LG cannot be interpreted to overflow the dominant aspect that the LG is to act under the aid and advice of the council. The said power has to be exercised by the LG where the Council of Ministers encroaches upon the executive or legislative powers of the Union in terms of the three lists.

Further, the senior counsel contended that the proviso to Article 239AA(4), in so far as it empowers the LG to take immediate action pending the decision of the President on a disagreement between the LG and the Council, as well as Article 239AB which provides for the suspension of the powers of the Council of Ministers in certain situations are extraordinary provisions and should not be allowed to loom so large as to destroy the cardinal principle of constitutional interpretation which requires the “aid and advice” of the council to be binding on the LG.

Subramanium offered as analogy the provisions of Article 53, which vests in the President the executive power in respect of the union, and Article 73 which extends the same to the matters on which the Parliament is empowered to make laws.

Also, in so far as it is provided that the Council of Ministers headed by the Chief Minister ‘hold office during the pleasure of the President’, the same should be understood to imply that the ministers are sworn into office with the executive powers and not as an anomaly in the investiture of the executive power in respect of the UT of Delhi.

When Article 239(1) is read together with clauses (1) and (4) of Article 239AA, it is understood that the President of India, in so far as he appoints the Council of Ministers and his power extends to the Entries 1, 2 and 18 of the State List in respect of the UT, is the first titular head. The LG as the delegate of the President is the second titular head but has no free reign as the President under Article 239(1). Article 239 is the general rule to which Article 239AA is the exception.

Arguments will continue on Wednesday.