Judgement in Plain EnglishThe Lieutenant Governor and the NCT Delhi
On May 11th, 2023, the Supreme Court unanimously upheld the Delhi government’s power over administrative services in the National Capital Territory of Delhi (NCTD). The Bench emphasised the importance of a federal structure of governance where civil servants, through a ‘chain of accountability’, must be held responsible to the electorate.
The dispute between the Union and Delhi governments over the control of the NCT of Delhi dates back to 2013 when the Aam Aadmi Party came to power in the national capital. Despite being a Union Territory, Article 239AA grants special status to Delhi by establishing its Legislative Assembly along with its Chief Minister and Council of Ministers—features normally possessed by a State. However, as a Union Territory, Delhi also has a designated administrator or the ‘Lieutenant Governor’ (LG).
Confusion arose over the unique relationship between these two government heads and the extent of the power they exercise over the NCT of Delhi. In 2018, a 5-Judge Constitution Bench of the Supreme Court ruled that the Lieutenant Governor is bound by the aid and advice of the NCT of Delhi’s Council of Ministers. In 2021, in an attempt to retain control over the national capital, the Union passed the Government of National Capital Territory Act (Amendment) Act, 2021 (the Act), which barred the Delhi Assembly from considering the day-to-day administration of the capital.
The Delhi government protested against the Act since it shifted the control of Delhi’s civil servants from itself to the LG, who is the Union’s representative. The Delhi government claims that it cannot implement policies in the NCT as the civil servants supposed to implement them are not under its control. They also argue that the Act diminishes the role of Delhi’s elected government, violating basic constitutional features of federalism, democracy, and the rule of law.
NCT of Delhi is Sui Generis
In adherence to the SC’s 2018 Judgement on the special status of Delhi, the Bench reiterated the sui generis status of Delhi created under Article 239AA of the Constitution. Article 239AA creates a unique identity for the NCTD. Despite being a Union Territory, the NCTD similar traits as a State.
Further, in 2018, (then) Justice Chandrachud held that there is no homogenous class of Union Territories. The Constitution of India makes several region-specific accommodations under Article 371. These region-specific accommodations are an underlying principle of the Constitution.
‘In so far as any such matter is applicable to Union Territories’
The Union vehemently contended that the words ‘In so far as any such matter is applicable to Union Territories’ in Article 239AA limit the powers of the Delhi government to that of a Union Territory. However, the Bench drew attention back to the SC’s 2018 decision (concurring opinion by Justice Chandrachud) which held that the powers of the NCT government will encompass all matters under the State and Concurrent lists. However, this will not include three categories in the State list: public order, police, and land. The legislative powers of the NCT government under Art. 239AA(3) must be guided by the broader principles of the Constitution and not a narrow view.
Importance of the Federal Structure
As per the SC’s 2018 decision, the NCTD’s unique constitutional status under Art. 239AA makes it a distinct federal entity for the purposes of understanding the relationship between the Union and the NCTD. Art. 239AA creates an asymmetric federal model with the Union government at the centre and the NCT government at the regional level. The Bench held that such an expansive interpretation of Art. 239AA(3)(a) would further the basic structure of federalism in the Constitution.
Discretionary Powers of the Lieutenant Governor
The Bench held that the discretionary powers of the Lieutenant Governor (LG) extend only to two classes of matters:
- Matters which deal with issues beyond the competence of the Delhi Legislative Assembly (public order, police, and land) and where the President has delegated such a power to the LG.
- Matters which, by law, require the LG to act at their discretion or where the LG is exercising judicial or quasi-judicial functions.
The Bench also limited the LG’s powers and functions under Chapter IV of the Transaction of Business Rules (the Rules) which allow the LG to exercise powers in relation to the NCT’s administration. The Bench held that the Rules must be read in the context of Article 239AA and Section 41 (LG’s discretionary powers) of the Government of the National Capital Territory of Delhi, Act 1991. This implies that the executive power of the Union (in the absence of specific laws) extends only to the three exceptions to the NCT government’s powers. However, if Parliament does pass a law on the Union’s powers over the NCTD, then the LG’s powers will be modified to the same extent.
Balakrishnan Committee Report
The Bench reiterated the SC’s 2018 decision to exclude the Balakrishnan Committee report which suggested the exclusion of ‘services’ under Entry 41 of the State list from the NCTD’s legislative powers. The report suggests that Entry 41 (services) of the State list applies only to States and not Union Territories and that the administration of Union Territories is the responsibility of the Union. The 2018 judgement, contrary to the Report, held that the NCT government has legislative power over all subjects in the State list with the exception of public order, police, and land.
Legislative Powers of the NCTD on Services
The Judgement, referring to the State of Haryana v Chanan Mal (1976), held that the Delhi government would retain its power to laws on ‘services’ even if it did not exercise these powers. However, since three entries—public order, police, and land—are excluded from the Delhi government’s powers, it cannot control services related to these three subjects. Therefore, a distinction must be drawn between services controlled by the Union and services controlled by the NCT government.
Limits of the NCTD’s Powers
For the purposes of the NCTD, List II and List III function as ‘concurrent lists’—both, Parliament and the Delhi legislature (subject to exceptions) can make laws on entries on both lists. In the event of a clash between law made by Parliament and law made by the Delhi legislature, the Parliamentary law will prevail.
The Delhi government’s executive power will extend to the same extent as its legislative power. However, the Union may exercise executive power (through the LG), only if the Constitution or Parliamentary law grants such power.
The Bench reiterated that the NCT government’s powers over ‘services’ remains subject to the limitations under A. 239AA which specifically excludes public order, police, and land, from the purview of the NCT government. However, the NCTD retains power over matters concerning the implementation of policies and day-to-day administration through the Indian Administrative Services or the Joint Cadre Services.