Legal opinion of Justice (Retd.) Mukul Mudgal
“To answer the question whether Rule55(1) of the Rule of 1993 mandates a prior reference either by assembly to lieutenant Governor or by the lieutenant Governor to the Central Government in regard to every legislative proposal of the Delhi State Assembly, a close override and go beyond what is intended by the Act. Rule 55 thus has to be seen and interpreted in the light of the “legislative proposal”, which if introduced in a Bill form and enacted by the Legislative Assembly, is contrary to the bar stated in Article 239AA(3)(c) of the Constitution of India. Thus Rule 55 was enacted only to fetters on the Assembly in such matters as relate to Taxation & trade, Commerce, not mandate a prior reference before the introduction of every Bill sought to be tabled and enacted by the Delhi Assembly and indeed a harmonious reading of the rule in the context of the Act of 1991 and of the Constitution clearly shows that the law what is merely required is a post facto reference to the President in certain situations contained in Article 239AA(3)(c) of the Constitution of India. Thus, in my opinion any other interpretation of Rule 55(1) of the Act would make the entire position absurd as it would end up reducing the functions of Delhi Assembly nugatory. However, by way of abundant caution, the constitutional validity of Rule 55(1) may be challenged.”
Legal opinion of Sh. K.N. Bhat, Sr. Advocate
"The legal position that emerges from the above narration is that the National capital Territory of Delhi is to be primarily governed under article 239AA. Clauses 3(a) and 7(a) are the crucial provisions. The central Government through the Parliament wanted to retain power of administering Delhi through laws made by it.*239AA(7). The idea is clear that subject to the other provisions of the constitution, the Parliament can regulate the working of the Govt of national capital Territory through laws which are in pari material with the other provisions of the Constitution as applicable to State ‘shall apply mutatis mutandis to the NCT of Delhi’. Control over the working of the Delhi Government would not have needed amendment to the Constitutional provisions dealing with the states. Can the law, so made under clause7(a), dilute the powers of the assembly to make laws conferred under clause 3(a) of Article 239AA? Can S.22 of the Act relating to financial Bill be regarded as provisions for giving effect to or supplementing the provisions contained in the earlier clauses and for all matters incidental and consequential thereto? This is a serious question. The requirement of prior reference to Lt. Governor/Central Government under 55 is out side the provisions of the Act including S.22 there of. Hence it is ultra vires. Rule 56 prescribes that no action shall be taken except in accordance with the decision of the Central Government in respect of matters that have been referred by the Lt. Governor to the Central Government. Thus the legislature of Delhi is reduced to a department of the Central Government through a rule which is a subordinate legislation by a delegated authority; and the rule in effect nullifies article 239AA(3)(a).
The queries are answered accordingly."
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