TAKE-AWAY (MORAL) FROM TODAY’S DELHI HIGH COURT JUDGMENT (RE GOVERNMENT OF NCTD VS UOI, WP© 7887/2015):

TAKE-AWAY (MORAL) FROM DELHI HIGH COURT JUDGMENT (RE GOVERNMENT OF NCTD VS UOI, WP (C) 7887/2015, DOD AUGUST 04, 2016):

Amend the existing legal regime governing the NCTD and empower its elected government. It warrants no constitutional amendment. A simple parliamentary amending law under Article 239AA(7)(a)&(b) will suffice or alternatively, merely slight tweaking of the Government of NCTD Act, 1991 and in particular Section 24  thereof,  and Transaction of Business of the GNCTD Rules, 1993 and in particular Rule 55 thereof  may adequately serve the propose.

OR

Do away with Delhi Legislature/elected government and restore back pre-1993 position.

OR

Put in place a law providing for a “nominated government” in NCTD by the Central Government (Central government will nominate MLAs in each constituency and in turn, they will elect a CM, and CM will appoint Ministers, and Council of Ministers headed by CM  in consultation with Lt Governor (also a Central government nominee) will govern the NCTD.

CAVEAT:

The Hon’ble Supreme Court of India under Articles 131 or 136 R/W Article 142 of the Constitution may also fill the gaps and level-up the inadequacies and inconsistencies in the existing LAW governing NCTD.

(so SHOW IS NOT YET OVER from the standpoint of a final court verdict)…In Supreme Court, the thrust of argument may primarily hinge on:

1. Literal provisions enshrined in Articles 239 and 239AA of the Constitution must be harmonized with peremptory tenets of Parliamentary form of Cabinet system of government ie primacy of ELECTED GOVERNMENT (council of ministers headed by CM) over SELECTED (Administrator/Lt Governor) by Central Government. Besides, “federal character of the Constitution” has been recognized a “basic structure of the Constitution” by the Hon’ble Supreme Court in “basic structure case” (Kesavananda Bharti vs State of Kerala, 1973) itself. Moreover, current dispensation at Centre especially Prime Minister Sh. Narender Modi Ji professes to be great votary of “co-operative federalism”. Furthermore, “Constitution” and “Constitutionalism” go in tandem in a “constitutional democratic republic”.     
2. Special law overrides General law i.e. Article 239 should give way to Article 239AA
3. Functional aspect mounts over nominal aspect i.e. NCTD, although, is not a State but nevertheless the Article 239AA itself mandatorily provides for a Legislature and Elected Government. Conversely, in case of Puducherry, the Article 239A sets out that PARLIAMENT MAY BY LAW create for the Union territory of Pondicherry—a body, whether elected or PARTLY NOMINATED AND PARTLY ELECTED, to function as a Legislature for the Union territory, or a Council of Ministers, or both with such constitution, powers and functions, in each case, AS MAY BE SPECIFIED IN THE LAW. Hence, the NCTD with constitutionally mandated Legislature/Elected Government ought to be treated like a State as far as possible.
4. Article 239AA (6) provides for collective responsibility of council of ministers to the Legislative Assembly. If the LG is not bound by the advice of the council of ministers even on the matters wrt which the Legislative Assembly has power to make laws, there can be no question of it being collectively responsible to the assembly or Delhiites as the council has ‘no control over the process of government decision-making’. 
5. Effect of Constitution 69th Amendment Act, 1991 (inserting Article 239AA) on certain terms viz. State, State Government defined/employed in General Clauses Act, 1897                                   
6. 
    FULL JUDGMENT:                                                                                                         http://lobis.nic.in/ddir/dhc/GRO/judgement/04-08-2016/GRO04082016CW58882015.pdf