During the hearing, Mr Subramaniam told the bench that "an elected government can not be without any power".
The Supreme Court (SC) of India on Thursday, while hearing a batch of pleas filed by the Aam Aadmi Party (AAP) led Delhi Government observed that the Delhi government will have to take the Lieutenant Governor's (LG) consent to govern the administrative duties in the capital.
As Subramanium sought to blame Lt. Governor for creating hurdles in the functioning of Delhi government, Justice Chandrachud said that every government has to function within the parameters of the constitution and the Article 239AA defines the powers of Delhi government and Union Territory. "Depending on the result of the scrutiny by the five-judge bench for deciding validity of demonetisation, petitioners can present their grievance before the court", it said. He added that even when there were differences between the L-G and state government, "the L-G can not be sitting on a file".
"Yes, there should be an element of objectivity in exercise of power by the L G following the difference of opinion".
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It had said that the special constitutional provision Article 239AA dealing with Delhi does not "dilute" the effect of Article 239 which relates to the union territory and hence, the concurrence of the LG in administrative issues was "mandatory". "Article 239AA is unique to Delhi".
"Law is very clear at present that LG partially enjoys delegated powers of President and partially he has to work in aid and advice of council of ministers". However, the LG can not hold any file for more than a reasonable period of time.
The two-judge Bench said there are several questions of law that need to be interpreted and settled by a Constitution Bench. "In the absence of a law, who has the power - you or the L-G?" asked the CJI, adding "the language of the Constitution says L-G's decision is final".
The High Court had dismissed the Delhi government's claim that the AAP-Centre tussle was a "classic" federal dispute. SC said, the LG will be the administrative head and will not be bound to advise of the council of ministers.
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