This article is written by Sakshi Singh. This article provides a detailed analysis of the 69th Constitutional Amendment, 1991. This article also explains the National Capital Territory (NCT) of Delhi along with its legislative powers and election procedures, inter alia. 

It has been published by Rachit Garg.

Introduction 

Delhi became the epicentre of Indian territory when Lord Harding, the then Viceroy of British India, decided to shift the capital region from Calcutta to Delhi in 1911. The reason for such shifting was that ‘Calcutta’ was far east on the geographical map of India, and therefore, it couldn’t be fairly used to control the whole territory. Also, the moderate conditions of the weather and the economic and cultural importance of Delhi have abetted this decision to shift the capital.  New Delhi, designed by the British architect Edwin Lutyens, was inaugurated in 1931. New Delhi was officially declared the seat of the Government of India after India gained independence in 1947.

In this article, the author has described the historical perspective of Delhi and how it led to the establishment of the Legislative Assembly in Delhi amid the widespread demand to make it a ‘state’. This article also highlights the ongoing clashes between the Lieutenant Governor of the NCT of Delhi and the government of Delhi, and the stance of the Supreme Court on the matter. 

Road to 69th Constitutional Amendment Act

Government of Part C States Act, 1951

The 1st Legislative Assembly in Delhi was constituted in 1952 under the Government of Part C States Act, 1951. It was inaugurated by the Home Minister of India, Mr. K. N. Katju. There were 48 members in the 1st Legislative Assembly of Delhi. There was an additional post of Chief Commissioner of Delhi, and the Council of Ministers was in a position to advise him. 

States Reorganisation Act, 1956

In 1953, the States Reorganisation Commission (SRC) was set up to recommend the reorganisation of the borders. The SRC has three members, namely, Justice Fazal Ali, a notable diplomat, K. M. Panikkar, and freedom fighter H. N. Kunzru. The recommendation of the SRC was accepted with some modifications and implemented in the States Reorganisation Act, 1956. The commencement of this Act led to the 7th Constitutional Amendment Act, 1956, which abolished the concept of qualification between Parts A, B, C, and D states. The country was reorganised, and the boundaries of a few Indian states were altered in such a way as to form 14 states and 6 centrally administered territories termed Union Territories (UTs). 

With this change, Delhi was no longer a Part-C state and was made a Union Territory under the direct administration of the President of India. Consequently, after this Constitutional Amendment, the 1st Delhi Legislative Assembly and the Council of Ministers were abolished, which was formed in 1952. 

Delhi Municipal Corporation Act, 1957

In 1957, the Delhi Municipal Corporation Act, 1957, was enacted, which led to the formation of the Municipal Corporation in Delhi. 

It should be noted that the Municipal Corporation is an urban local government that is commonly known as Nagar Palika, Nagar Nigam, City Corporation, or Mahanagar Palika.  This is a local body that is responsible for the development of any Metropolitan City having a population of more than 1 million people. Generally, Municipal Corporations are established by the state legislative assemblies in the respective states. However, for Union Territories like Delhi, the Municipal Corporations are established through the act of Parliament. 

Decentralisation of Delhi Municipal Corporation

Currently, Delhi has three municipal corporations in three districts, namely, South Delhi, North Delhi and East Delhi. This trifurcation was done in 2011 by an act of Parliament, namely, the New Delhi Municipal Corporation (Amendment) Act, 2011. This trifurcation was suggested by the S. Balakrishnan Committee (which was constituted before the 69th Constitutional Amendment Act, 1991). After that, the recommendation to divide the Municipal Corporation of Delhi was reiterated in the Virendra Pratap Committee Report, which was published in 2001.

Further, the 140th report on the New Delhi Municipal Council (Amendment) Bill, 2010, also known as the report of the Ashok Pradhan Committee, has also recommended the trifurcation of the Delhi Municipal Authority. This particular report was presented in the Upper House of Parliament in 2011, after which the New Delhi Municipal Corporation (Amendment) Act, 2011 came into force. 

Unification of Delhi Municipal Corporation 

The Parliament is about to bring out an amendment to the Municipal Corporation Act. The objective of the amendment is to merge the Capital’s three municipal corporations because the trifurcated Municipal Corporations of Delhi (MCD) were facing too many problems. These problems faced by MCD include inefficient management, financial difficulties, uneven territorial division, etc. 

Delhi Administration Act, 1966

The Delhi Metropolitan Council was replaced by the Delhi Administrative Act, 1966. Consequently, an assembly was established with 56 elected members and 5 nominated members. The Lieutenant Governor was the head of this assembly. However, the assembly didn’t have any law-making power. Its function was limited to advisory roles only. This statutory machinery lasted until 1990. 

69th Constitutional Amendment 

The assembly formed by the Delhi Administration Act was finally replaced by the 69th Constitutional Amendment, followed by the formation of a legislative assembly for the National Capital Territory of Delhi. The National Capital Territory of Delhi Act, 1991, was enacted to authorise the government of Delhi. 

The 69th constitutional amendment came into force in 1991, and its commencement date is 1st February 1992, with the objective of reorganising the administrative settings of the Union territory of Delhi. The story behind this Constitutional Amendment started in December 1987, when the government of India decided to constitute a Committee on Reorganisation of Delhi Setup, also known as the Balakrishnan Committee, as it was headed by S. Balakrishnan. This Committee was set up to look into the demands of providing statehood to Delhi. The report of the Committee clearly stated that “Delhi as the national capital belongs to the nation as a whole, and therefore, it cannot be given statehood as it would be against the national interest.”

All about 69th Constitutional Amendment 

This particular Constitutional Amendment has inserted two new Articles, namely- Article 239 AA and Article 239AB. Both of these important Articles are discussed below in detail. 

National Capital Territory of Delhi

Article 239AA provides that on the date of commencement of this constitutional amendment, i.e., February 2, 1992, the Union Territory of Delhi shall be called the National Capital Territory (“NCT”) of Delhi. 

Administration of Union Territory 

Since Delhi is one of seven Union Territories (UT) in our country, its administrative work should be done in accordance with that of a Union Territory given under Part VIII of the Indian Constitution. For the purpose of administering UTs, Article 239, which came into force with the 7th Constitutional Amendment Act, 1956, provides that each Union Territory in the country shall be administered by the President of India. However, it is not necessary that the President be in direct administrative control of the UT, as a specific person with a specific designation can be appointed by him to perform all the administration functions on his behalf. The president may also appoint a governor of any adjacent state to perform the administrative function of a UT, while being independent of the Council of Ministers of the state where he was a governor in the first hand.  

However, Parliament has been given the power under Clause 1 of Article 239 to enact legislation to regulate the administrative functionalities of the Union Territories. 

Lieutenant Governor of NCT 

The 69th Constitutional Amendment further adds that the Administrator of the NCT of Delhi appointed under Article 239 will be known as the Lieutenant Governor. Notably, Vinai Kumar Saxena is currently appointed as the 22nd LG of the NCT of Delhi in 2022. 

Ordinance-making power of LG

We know that the President of India and the Governor of the State have the power to promulgate ordinances when the Parliament or state legislatures are not in session. These powers are given in Articles 123 and 213 of the Constitution for President and Governor, respectively. On a similar note, the administration of the NCT of Delhi, i.e., the Lieutenant Governor of the NCT, also has the power to promulgate the ordinances. 

Clause 8 of Article 239AA states that the provisions of Article 239B shall be applicable to the NCT of Delhi, its LG, and the Legislative Assembly in the same manner as they are applicable to the Union Territory of Puducherry, its administrator, and its legislature, respectively. It should be noted that Article 239B is all about the ‘power of administrator to promulgate ordinances during recess of legislature’. In accordance with Article 239B, the LG of NCT can promulgate ordinances if the following conditions are fulfilled- 

• When the legislative assembly of UT is not in session. 
• If he is satisfied that existing circumstances made it necessary for the promulgation of ordinances; 
• The existing circumstances require immediate intervention in the form of ordinances, and
• The administrator has been issued instructions from the President of India to promulgate such an ordinance. 

It should be noted that if the legislative assembly of the said Union Territory is dissolved or its functioning is suspended by Parliament as in accordance with Article 239A, then in such a case, the administrator of the UT shall not be entitled to promulgate the ordinances during the period of such dissolution or suspension. 

Effectiveness of the ordinances 

The ordinances promulgated by the administrator of Union Territories shall have the same effect as they would have if they were passed by the Legislature of the Union Territory. 

However, every ordinance promulgated by the administrator of UT when the legislative assembly is not in session must be laid before the legislature of UT. All such ordinances will cease to be effective six weeks after the assembly comes to session again. It shall also cease to exist if a resolution is passed that disapproves of the said ordinances, even before the expiration of six weeks. 

There is also a provision for withdrawing the ordinances promulgated by the administrators. However, before such withdrawal, the administrator needed to take instructions from the President to that effect. 

Further, clause 3 of Article 239B states that ordinances promulgated by the administrator of the UTs must be legal. In other words, ordinances would be void if they contained anything, which, if contained by any Act, duly passed in the legislative assembly, would then become invalid. For instance, if any Act passed by the legislative assembly is violative of fundamental rights, it would be an invalid Act. On a similar note, if any ordinance promulgated by the governor contained anything violative of fundamental rights, then it would be void to the extent that it was in violation of fundamental rights. 

Legislative Assembly of NCT

Article 239AA, which was inserted by the 69th Constitutional Amendment, also mandates that there shall be a Legislative Assembly for the NCT of Delhi. It also ascertains that there shall be a direct election in the territory of NCT in all its constituencies, based on which the members of the Legislative Assembly of NTC will be decided. 

Article 239AA (1)(b) empowers the Parliament, or, to say, puts a duty on the Parliament to enact legislation in order to regulate the functioning of the Legislative Assembly of the NCT of Delhi. Such enacted laws will regulate the following matters– 

• Deciding the total number of seats in the Legislative Assembly of NCT;
• Parting NCT of Delhi into different territorial constituencies while recording the basis of such divisions; 
• Deciding the total number of seats that should be reserved for candidates from Scheduled Caste (SC) and 
• Deciding all other matters relating to the functioning of the legislative assembly of NCT of Delhi. 

Election in NCT 

Provisions from Part XV, which is all about ‘Elections’, will also apply to the NCT of Delhi. Part XV consists of a total of six articles, of which only five are applicable to the NCT. Article 239AA (1)(a) provides that the provisions for Articles 324 to 327 and 329 will be applicable to the NCT of Delhi, its legislative assembly, and elected members thereof in the same way as they are applicable to the state, its legislative assembly, and elected members, respectively. 

There is no direct mention of the mannerisms of election for the legislative assembly of ‘Union Territory’ or ‘NCT of Delhi’ anywhere in Chapter XV (Elections) of the Indian Constitution. But there is a legislative assembly in the NCT of Delhi, so the process of the election would be the same as those followed for the election in state legislative assemblies. Following are the election-related provisions of the Constitution that are applied to the NCT of Delhi:-

• Article 324 states that there shall be an Election Commission, which shall be vested with the power of superintendence, direction, and control of elections. 
• Article 325 prohibits discrimination on the grounds of race, caste, sex, or religion in the matter of eligibility to be included in the special electoral roll. 
• Article 326 is the epitome of the Universal Adult Franchise. It states that elections for the legislative assembly or parliament shall be conducted on the basis of adult suffrage. In other words, every citizen who is 18 years of age or older is entitled to cast their vote in the elections. 
• Article 327 gives Parliament the power to make laws from time to time in order to regulate the matter of elections in legislative assemblies. Matters of election include preparing electoral rolls, the delimitation of certain constituencies, and all other matters necessary for the formation and functioning of the assembly. 
• Article 329 – This article bars the Courts of India from interfering in the matter of election for either state legislative assemblies or Parliament (also including NCT of Delhi and other UTs). It specifically mentions that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies (as given under Articles 327 and 328, respectively) shall not be called into question in any court.

However, decisive rights in relation to any election discrepancies shall vest with an authority established by or under any law made by the appropriate Legislature. The Election Commission of India (ECI) is one such authority established by the Constitution to conduct free and fair elections and settle all the discrepancies related thereto. 

These are the provisions that are applicable to the NCT of Delhi in the matter of elections. However, Chapter XV contains a provision that is not applicable to the NCT of Delhi. It is exclusively for the state and central elections. Article 328 is the provision that confers on the state legislatures the power to make election regulations for either House of State Legislative Assembly. These election regulations include the preparation of electoral rolls and all other matters necessary for securing the due constitution of such a house or houses.

However, such rights are subject to provisions of the Constitution and laws made by Parliament regarding that matter. Since Article 328 is not applicable to the NCT of Delhi, it does not have any power to make laws regarding elections or matters related thereto. 

Law-making power of the Legislative Assembly of NCT 

The legislative assembly of the NCT of Delhi derives its law-making power from Clause 3 of Article 29AA. It states that, subject to the other provisions of this constitution (such as the 3 lists mentioned in the 7th Schedule of the Indian Constitution), the legislative assembly of NCT will have the power to make laws for the whole or any part of the territory of NCT. This law-making power is limited to the subject matter enumerated in the second list- the state list. It is pertinent to note here that Article 246 (7th Schedule of the Constitution specifically mentions the 3 types of lists, namely- (i) Union list; (ii) State list; and (iii) Concurrent list.) 

The NCT of Delhi is also empowered to make law on the subject matter mentioned in the 3rd list- the concurrent list—so far as such subject matter is applicable to Union Territories and it does not contravene the parliamentarian laws. Thus, it is clear that the NCT of Delhi has the power to formulate a law with respect to matters inculcated in the State list; however, there are certain exceptional subject matters that are mentioned in the state list, but the NCT of Delhi can’t make laws on those matters. Following are the subject matter on which the NCT of Delhi cannot make law- 

(I) Public order (Entry 1)  

Entry 1 of the state list provides that the state can make legislation with respect to public order, but it does not include regulations with respect to the use of any naval, military, air force, or any other armed force of the Union or under the control of the Union.

(II) Police (Entry 2)

Entry 2 of the state list, which was inserted by the 42nd Constitutional Amendment, provides that laws related to police regulations fall within the ambit of state regulations. Police in this entry also include village and railway police. The power of law-making granted in this entry is subjected to entry 2A of the union list. Notably, entry 2A of the Union list, which was also inserted by the 42nd Constitutional Amendment Act, 1976, provides for the deployment of any armed force or any other force of the Union or under the control of the Union or any contingent or unit thereof in any state in aid of the civil power; the powers, jurisdiction, privileges, and liabilities of the members of such forces while on such deployment. 

(III) Land (Entry 18)

Entry 18 of the state list provides for the power of the state to make laws regarding certain matters of land rights, which include- (i) rights over land; (ii) transfer and alienation of agricultural land; (iii) relations between landlord and tenant; (iv) the collection of rents; and (v) land improvement and agricultural loans. 

Along with the above 3 subject-matters mentioned in entries 1, 2, and 18 of the state list, the NCT of Delhi is also prohibited from making laws with respect to entries 64, 65, and 66 so far as they are connected with entries 1, 2, and 18. Notably, Entry 64 is concerned with the subject of offences against laws with respect to any of the matters in this list. Entry 65 provides for the jurisdiction and powers of all courts other than the Supreme Court with respect to any of the matters in this List. Lastly, Entry 66 is about fees for matters incorporated in this List, not including fees taken in any court.

Power of Parliament to make laws for NCT of Delhi 

Though to a certain extent autonomy has been provided to the NCT of Delhi, the Parliament is the supreme authority to make laws in relation to any matter of the Union Territory or any of its parts. Also, Parliament has the power to add, amend, verify, or repeal any law with respect to a matter that is already legislated by the NCT of Delhi. 

Further, if any law made by the NCT of Delhi is inconsistent with the law made by Parliament, then it would be void to the extent of inconsistency. In this case, it is irrelevant whether the law passed by Parliament was before or after the law passed by the NCT of Delhi. However, if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, then such law shall prevail in the NCT of Delhi. 

Council of Ministers of NCT 

The Council of Ministers is a supreme executive authority that is responsible for the governance of the territory. In general terms, they are a group of appointed ministers from the elected government. It is evident from the above-mentioned details that the NCT of Delhi has a legislative assembly, and there are elections every 5 years to elect the members of that assembly. After each election, a duly elected government comes into power for a definite period. It should be noted here that government formation is a process where the majority comes to power. 

Clause 4 of Article 239AA states that there shall be a council of ministers in the NCT of Delhi. The number of members in the council shall not exceed 10% of the total number of members in the Assembly of NCT. They are responsible for looking after the governance of the NCT and bearing the collective burden of the Legislative Assembly. Currently, in the 7th legislative assembly of NCT, there are 4 members in the Council of Ministers. Following are the names of these members along with their designated ministries- 

1. Shri Gopal Rai

Minister for Delhi Cabinet Minister- Environment, Forest and Wildlife, Development and General Administration Department

2. Shri Imran Hussain

Minister for Food and Civil Supplies and Election

3. Shri Kailash Gahlot

Minister for Law, Justice and Legislative Affairs, Transport, Administrative Reforms, Information and Technology, Revenue, Women and Child Development

4. Shri Raaj Kumar Anand

Minister for Gurudwara Elections, SC and ST, Social Welfare, Cooperative

Appointment of the Council of Ministers is done by the President of India upon the advice of the Chief Minister of the NCT of Delhi. The tenure of these appointed ministers will last until the ‘pleasure of the President’. 

Chief Minister 

The council of ministers is headed by the Chief Minister of the State. Here, in the case of the NCT of Delhi, the council of ministers is headed by CM Arvind Kejriwal. The function of the Chief Minister of NCT is to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters of the Legislative Assembly. The CM has the power to make laws on the subject matter permitted by law. 

Supplementing the provisions by making further laws

It can be seen from the above discussion that Parliament has been conferred with the power to make laws relating to the administration of NCT of Delhi on matters of election for members of legislative assembly or law-making powers of their legislative assembly, etc. In furtherance of the above-mentioned power, Clause 7 of Article 239AA enunciates that Parliament has the power to make laws in order to effectuate the provisions of this Article inserted by the 69th Constitutional Amendment. 

The laws that will be made by the Parliament to give effect to the provisions of this Article shall not be construed as a ‘Constitutional Amendment’ unless such law contains the provisions that amend or have the effect of amending the Constitution. 

Failure of constitutional machinery

Apart from Article 239AA, the 69th Constitutional Amendment also inserted Article 239AB. This Article is all about the provisions necessary to be effective in situations of constitutional machinery failure. Failure of constitutional machinery is a situation when the duly elected government of any state, Union Territory, or central level fails to perform its constitutional duties, which, inter alia, include balancing the law and order situation in the territory and promoting tranquillity. 

Suspension of operation of Article 239AA

The President may, by order, suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that Article if he is satisfied that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239AA (Special provision with respect to Delhi) or any other law made in pursuance of Article 239AA. 

The president may also suspend the operation of Article 239AA if he is of the opinion that such suspension of operation is necessary or expedient for the proper administration of the NCT of Delhi. 

It should be noted that such a suspension would last for a period specified by the President to such effect. Suspension of Article 239AA in case of failure of constitutional machinery would be subject to such conditions as may be specified by the President. Further, the President of India, while suspending the application of Article 239AA in the NCT of Delhi, might also put into effect some laws that, in his opinion, are necessary or expedient for administering the NCT of Delhi in the absence of the application of Article 239AA. Such a law put into effect by the President must have a similar effect as Articles 239 and 239AA. 

To know more about the failure to Constitutional machinery, refer here

Clash between LG and Government of NCT 

The proviso of Article 239AA(4), which was inserted by the 69th Constitutional Amendment, clearly depicts the situations of conflict of opinion between the Lieutenant Governor (“LG”) and his Ministers on any matter. When any such difference of opinion arises, then the LG shall have the power to refer the disputed matter to the President of India. Whatever the decision of the President, LG and legislative machinery have to act in accordance. 

In a situation where the decision on the matter is to be taken urgently and the referred matter is pending before the President, LG is of the opinion that the matter is so urgent that it is necessary for him to take immediate action, and can take any competent and prompt action in the matter as he deems fit. 

Government of NCT Of Delhi v. Union of India (2023)

In the case of Govt. Of Nct Of Delhi v. Union Of India (2023), the 5-judge constitutional bench of the Supreme Court, comprising Justice D.Y. Chandrachud, C.J., M.R. Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice P.S. Narasimha, has decided the matter of tussle between the Union Territory of Delhi and the Central Government of the extent of power they exercise in the territory. 

Facts of the case

In 2015, a notification was released by the Home Ministry of India that stated that the Lieutenant Governor (‘LG’) of the NCT of Delhi shall exercise the delegated (by the President of India) control over the’services’ (Entry 41 of the state list) in addition to “public order”, “police”, and “land”. In the exercise of this control, LG might take the opinion of the Chief Minister of NCT of Delhi at his discretion.  

A series of judgments on the issue

• Delhi High Court 

The matter was heard before the Delhi High Court first. The Delhi High Court had its verdict in 2016, which was in favour of the Union of India. The Delhi HC held that “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi”. 

• Appeal to Supreme Court 

The Government of Delhi, led by Arvind Kejriwal, has appealed against the order of the Delhi High Court in the Supreme Court. In this appeal before a two-judge Bench of the Supreme Court it was stated that since the matter was related to the interpretation of the provision of the Constitution, i.e., Article 239AA, and it also included a substantial question of law as it deals with the interpretation of special provisions related to Delhi, the matter was referred to the Constitutional Bench of the Supreme Court. 

• Reference to Constitutional Bench [2018 Judgment] 

The Constitutional Bench of the Supreme Court delivered its judgement in 2018. The Supreme Court, while turning against the verdict of the Delhi High Court, has held that the government of Delhi has to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has the power to make laws in accordance with sub-section 4 of Article 239AA, viz., all items on the State List except (Public Order, Land and Police) & and the Concurrent List. However, LG has no independent decision-making powers, and he is bound by the aid and advice given by the government of Delhi.

The Court has opined that “there is no room for absolutism and there is no room for anarchism also” in the governance of the NCT of Delhi. Though the LG has the power to act in accordance with his discretion, this power is not absolute. The LG should exercise this power with great caution, only “in exceptional circumstances and not in a routine or mechanical manner”.

The Court has further specified that LG may seek the opinion of the Indian President in situations of disagreement with the elected government of Delhi. The President would have the final authority, and his decision would be binding on both the LG and the Government of Delhi in case of conflict.

It further established that since the substantial question of law and interpretation of Article 239AA was done by this Bench, further questions of dispute between LG and the Government of Delhi will be dealt with by the regular benches of this court. 

• Split Verdict of Supreme Court [2019 Judgement]

After the Constitutional Bench of the Supreme Court had interpreted Article 239AA, the appeals were directed to a regular Bench to decide on the specific issues. The two-judge Bench, comprising Justice Ashok Bhushan and Justice A Sikri, has given its verdict on the matter in the case of  Govt. NCT of Delhi v. Union of India (2019). This is known as a split verdict because, in this case, two judges had a conflict of opinion. 

There were six issues in this case, and both judges shared the same opinion on issues 2-6, but they differed on one issue, i.e., issue 1. 

Framed issues 

In this case, the regular bench of the Supreme Court has framed six issues, which are mentioned below- 

1. Whether the exclusion of ‘services’ [Entry 41 of List II] from the legislative and executive domain of the NCT of Delhi is unconstitutional and illegal?

There was a conflict of opinion between Justice Ashok Bhushan and Justice A K Sikri on this matter. On this issue, Justice AK Sikri has opined in favour of the Union of India and held the NCT of Delhi can’t be given the jurisdiction to make laws on the matter of ‘services’ because it is related to the excluded matter to some extent. 

On the other hand, Justice Ashok Bhusan was of the opinion that the verdict given by the Constitutional Bench in 2018 has not provided the interpretation of the expression “insofar as any such matter is applicable to Union Territories”, but this is to be elaborated before deciding this matter pending before this Bench. 

2.  Whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCT of Delhi to investigate offences under the Prevention of Corruption Act, 1987 by the officials of the Central Government and limiting the jurisdiction of the ACB to the employees of the government of Delhi alone is legal? 

Two notifications were released by the Government of India in 2014 and 2015, which stated that the jurisdiction of the Anti-Corruption Branch (ACB) is limited to employees under the Delhi government only. It should be noted that earlier, the jurisdiction of the ACB extended to the whole of the Union Territory of Delhi without any specification as to government or non-government employees. The legality of this notification was challenged in the Court of Law on the grounds that it is a violation of Article 14, among others.

The Supreme Court has upheld the validity of the above notification while stating that prevention of corruption is a subject that comes under the purview of ‘public order’ [Entry 1 of the State List], and the legislative assembly of the NCT of Delhi is explicitly prohibited from passing any executive order on this matter. However, the Parliament has the complete authority to do so; therefore, limiting the jurisdiction of the ACB to the employees of the government of Delhi alone is legal. 

3. Whether the government of NCT is an “Appropriate Government” under the Commission of Enquiry Act, 1952?

In 2015, a commission of inquiry was set up by the Delhi government to inquire into the alleged CNG fitness scam, headed by retired Delhi High Court judge S. N. Aggarwal. This commission was set up to inquire into the scam that occurred during the reign of then Chief Minister Sheila Dikshit of the Indian National Congress. Later that year, another commission was set up to inquire into alleged scams in the Delhi and District Cricket Association. This was a one-member commission composed of former solicitor general Gopal Subramanium. The establishment of this commission was opposed by the then LG Najeeb Jung, who stated that since the Delhi government is not a state, setting up a commission is outside the scope of their power. 

However, the Supreme Court held that according to Section 3(58) of the General Clauses Act, 1879 definition of ‘State’ also includes ‘Union Territories’. On the other hand, Section 2(60) provides the definition of ‘state government’ which shall mean ‘central government’ for the Union Territories. For this issue, the Supreme Court has ruled in favour of the government of India and concluded that the expression ‘State Government’ occurring in Section 2(a) of the Commission of Inquiry Act would not mean ‘Union Territory’ i.e., the government of Delhi in the instant case. It can be summed up that the government of NCT is not an “Appropriate Government” under the Commission of Enquiry Act, 1952, and therefore, the notification to establish an inquiry commission is not valid. 

4. Whether the Government of NCT of Delhi has the power to issue directions without obtaining the concurrence of the Lieutenant Governor or not?  

Delhi Government has issued a direction [notification No. F.11(58/2010/Power/1856) dated June 12, 2015] to the Delhi Electricity Regulatory Commission under Section 108 of the Electricity Act, 2003 and under Section 12 of the Delhi Electricity Reforms Act, 2000 (Hereinafter referred to as “DERA”) Under this direction, it has nominated fresh directors to the boards of directors of the three private power distribution companies in the UT without the concurrence of then Lieutenant Governor Najeeb Jung.

On this matter, a Bench of the Delhi High Court in 2016 ruled in favour of the Union of India by giving the explanation that since the particular direction was issued with the nod of the  Lt. Governor, the same could not be validated. 

However, later on, the Constitutional Bench of the Supreme Court in 2018 held that the government of Delhi does not need the concurrence of the Lt. Governor every time. It is the Lt. Governor who has to act on the aid and advice of the government of Delhi. In line with the opinions given by the Constitutional Bench of the Supreme Court, this Bench of the Court has held that the Government of the NCT of Delhi has the power to issue directions even without obtaining the concurrence of the Lieutenant Governor. 

The Delhi Electricity Reforms Act is an enactment of the Delhi Legislative Assembly. Further, DERA provides that the government of the NCT of Delhi has the power to issue directions, provided that the issued direction is for policies involving public interest. And since the Lt. Governor is to act in accordance with the aid and advice of the Council of Ministers of Delhi, it can be said that there is nothing wrong with issuing directions without the concurrence of the Lt. Governor when that direction is issued as enacted legislation. 

Section 108 of the Electricity Act states that “(1) In the discharge of its functions, the State Commission shall be guided by such directions in matters of policy involving public interest as the State Government may give to it in writing; (2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the State Government thereon shall be final.” This Bench of the Supreme Court has highlighted that so far as Section 108 of the Electricity Act is concerned, the term ‘State government’ there would not mean the Central Government because if it would refer to the ‘Central Government’ then such an interpretation would clearly give rise to a conflict of jurisdiction between the Government of Delhi and the Central Government.  

Therefore, after due consideration to avoid this conflict of jurisdiction and reference to the dicta laid down by the Constitution Bench, it was held by this court that the Delhi High Court was wrong while declaring the notification dated June 12, 2015, illegal. 

5. Whether the Revenue Department of the government of Delhi has the power to revise the minimum rates of Agricultural Land (Circle Rates), given that matters of ‘land’ are excluded from the legislative jurisdiction of the NCT of Delhi?

In 2015, the government of Delhi issued a notification in which it revised the rates of Agricultural Land (Circle Rates) under the provisions of the Indian Stamp Act, 1899, and the Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007. It was contended by the LG that before issuing such notification, the matter was not placed before him for his views or concurrence. For this issue, the bench has come to the realisation that revising the rates of agricultural land is not related to Entry 18 of the state list (land), on which the legislative assembly of NCT is prohibited; rather, it is related to Entry 63 of the state list (rates of stamp duty). 

The notification in question was issued under the Stamp Act, and it pertains to payment of stamp duty and not to land rights or land revenue. Therefore, the Revenue Department of the government of Delhi has the power to revise the minimum rates of agricultural land (circle rates). 

6. Who has the power to appoint a public prosecutor- Lieutenant Governor or the government of Delhi?

Soon after the widespread Northeast Delhi communal riot, a tussle of power was highlighted between the Lt. Governor and the government of Delhi as to who has the power to appoint a ‘Special Public Prosecutor’. It should be noted that the riot in Northeast Delhi was a result of long-drawn-out protests on the matter of the Citizenship Amendment Act (‘CAA”) and the National Register of Citizens (“NRC”). Sub-section 8 of Section 24 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the CrPC”) provides for the appointment of a Special Public Prosecutor. It states that “the Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.”

It is evident that the power to appoint a special public prosecutor has been conferred on the central government and state governments. There has been no mention of the government of the Union Territories. Now, the question that arose was whether the term ‘state government’ in Section 24(8) of the CrPC also includes ‘UTs’. On this point, Section 3(60) of the General Clauses Act was referred to, which defined ‘State government’ as the central government in the case of Union Territories. And since the administrator of the Union territory is empowered to exercise powers of central government, in such cases, the expression ‘State Government’ would mean the Lt. Governor of the NCT of Delhi.  

Thus, the Regular Bench of the Supreme Court has concluded that the LG has the power to appoint the public prosecutor as per Section 24 of the Code of Criminal Procedure, 1973, but that should be done after the aid and advice of the Government of Delhi or, to say, Councils of Ministers. 

Final judgement of the Supreme Court [2023 Judgement] 

In the final judgement, the 5 Judge bench of the Supreme Court, which was headed by CJI DY Chandrachud, unanimously held in favour of the Government of the NCT of Delhi. Since all other matters were decided by the Regular Bench of the Supreme Court and only one issue has a conflict of opinion, therefore, the particular issue in which there was conflict of opinion was decided by 5 judge Bench in 2023. The issue on which there was conflict of opinion between Justice A Sikri and Justice A Bhushan was – whether the exclusion of ‘services’ [Entry 41 of List II] from the legislative and executive domain of the NCT of Delhi is unconstitutional or not. 

In this case, Apex has held that the NCT of Delhi is empowered to legislate and pass executive orders on the matter of ‘Services’ enumerated in Entry 41 of List II of the 7th Schedule. The Court ruled that all three matters of List II are excluded from the legislative and executive powers of the NCT of Delhi (public order, police, and land); therefore, this exclusion shall also extend to services (Entry 41) related to public order, police, and land. However, the NCT of Delhi would have a general power to legislate on the matter of ‘Services’, for instance, IAS, or Joint Cadre Services, but such a power would not be extended to the Indian Police Services (IPS). 

It was established by this Court that, by virtue of Article 239AA and Article 239AB, the NCT of Delhi has been given a special statute (“sui generis”), which makes it different from the other Union Territories. According to Article 239AA, the Legislative Assembly of the NCT of Delhi is empowered to legislate any matter given in State List I and Concurrent List II, except for the matters of land, police, and public order given in List II. These excluded matters come under the ambit of the central government to legislate upon them. Furthermore, the executive powers of the NCT of Delhi run alongside the legislative powers, which means the NCT of Delhi can pass executive orders only on the matters it is empowered to legislate. These executive powers of the NCT of Delhi shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament.  Consequently, the matters on which the government of NCT of Delhi could not legislate, the executive orders with respect to those matters will lie with the Central Government. 

Along with certifying the vast legislative and executive powers of the NCT of Delhi, this Bench has gone on to interpret the following highlighted texts of Article 239AA(3). “(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories, except matters with respect to Entries 1, 2, and 18 of the State List and Entries 64, 65, and 66 of that List in so far as they relate to the said Entries 1, 2, and 18.”

• Subject to the provisions of this Constitution

The Apex Court has interpreted that this phrase was-“Subject to the provisions of this Constitution” was added in Article 239-AA(3) with the objective of guiding the legislative powers of the NCT of Delhi with the broader principles of the Indian Constitution. It can’t be said that it was added to limit the legislative powers of the NCT of Delhi. 

• Insofar as any such matter is applicable to Union Territories

This phrase in Article 239-AA(3) is used to elaborate upon the meaning that the subject matter on which laws are made by the legislative assembly of the NCT of Delhi is applicable to it. It is a misconception that this phrase can be used to further exclude the legislative power of the NCT of Delhi over entries in the State List or Concurrent List that are not already excluded (for instance, Land, police and public order are the subject matter already excluded from the legislative powers of the NCT of Delhi). 

Difference between the meaning of Union Territory and National Capital Territory 

The NCT of Delhi is one among 8 Union Territories in India. These eight UTs are mentioned below in ascending order with the date of formation – 

• Andaman and Nicobar Islands
• Chandigarh
• Dadra and Nagar Haveli and Daman and Diu
• Delhi 
• Lakshadweep
• Puducherry (formerly Pondicherry)
• Jammu & Kashmir 
• Ladakh 

Serial No.	Basis of difference	Difference
1.	Capital	Out of these 8 Union Territories in India, the NCT of Delhi has been conferred with a special status in the name of the Capital of India.
2.	Population	It should also be noted here that the population of NCT is projected to be 2,09,65,000 as per Unique Identification Aadhaar India, updated 31, March 2022. This population is way ahead of the other Union Territories.
3.	Legislative Assembly	Generally,  the central government appoints the Lieutenant Governor (LG) for UTs, the administrator, and the representative of the President of India. However, Delhi, along with Puducherry and Jammu and Kashmir, have an elected legislature and government, as they were granted partial statehood under the Special Constitutional Amendment.
4.	Chief Ministers	NCT has a Chief Minister, as opposed to the nature of Union Territory. It should be noted that, along with NCT, Puducherry and Jammu & Kashmir also have Chief Ministers.
5.	Political influence	Being an epicentre for all the main offices of all the national political parties and the region of the establishment of Parliament, Delhi has a more prominent role in national politics as compared to other UTs, which have little to no political significance.
6,	Cultural and Economic activities	The National Capital Region is different from the other UTs in terms of economic and cultural activities as well. As compared to other union territories, which are relatively smaller in size, Delhi has expanded economic and cultural significance.

Effects of the amendment

The 69th Constitutional Amendment has had the following effect on Delhi, the capital of India. 

Special status

This Constitutional Amendment has conferred special status to the National Capital Region. It renamed the region the NCT of Delhi and initiated the formation of the legislative assembly, unlike other Union Territories. It can be said that though Delhi has not been coferred with statehood, as demanded, it has some autonomy in the sense that it can now govern the region through the laws enacted by its own legislative assembly. 

Advantage of local governance

Earlier, Delhi was just the national capital. Though it was a Union Territory, it did not have the power to regulate its own affairs. With the commencement of the 69th Constitutional Amendment, more regional developmental policies have come into effect, which will consequently increase the real-time development rate of the capital region. 

Strengthening democracy

The 69th Constitutional Amendment provided a legislative assembly, a council of ministers, and a Chief Minister for the UT of Delhi. This will ensure the strengthening of democracy in the region, as it will be effectively governed by the members elected by the people of that region. 

Formation of Legislative Assembly after 69th Constitutional Amendment

After the 69th Constitutional Amendment Act passed in 1992, Delhi was changed to the National Capital Territory. Since 1992, there have been seven assembly elections in the NCT of Delhi. 

Legislative Assembly election	Year	Chief Minister	Party
1st Assembly	1993	Madan Lal KhuranaSahib Singh VermaSushma Swaraj	Bharatiya Janata Party (BJP)
2nd Assembly	1998	Sheila Dikshit	Indian National Congress (INC)
3rd Assembly	2003	Sheila Dikshit	Indian National Congress (INC)
4th Assembly	2008	Sheila Dikshit	Indian National Congress (INC)
5th Assembly	2013	Arvind Kejriwal	Aam Aadmi Party (AAP)
6th Assembly	2015	Arvind Kejriwal	Aam Aadmi Party (AAP)
7th Assembly	2020	Arvind Kejriwal	Aam Aadmi Party (AAP)

Conclusion 

Given the historical importance of Delhi since the time of the Pandavas and Mughals, this territory has always maintained its significance.  It was the epicentre of all the economic, cultural, and political activities of the British colony in India, even after independence. 

The parliamentary efforts to establish a legislative assembly in Delhi have been in action since 1952. However, a permanent legislative assembly of the NCT of Delhi came into effect only after the 69th Constitutional Amendment.  

The 69th Constitutional Amendment Act, 1991, plays a very crucial role in the evolution of Delhi. By this Constitutional Amendment, Delhi got the status of National Capital Territory along with a legislative assembly having a 70-member and a 7-member council of ministers.

Frequently Asked Questions (FAQs) 

How many districts does the NCT of Delhi have?

The NCT of Delhi had only one district, i.e., headquarters at Tis-Hazari prior to January 1997. After that, more districts were added in 1997. It has 9 districts, 27 tehsils, and three statutory towns. After that, in September 2012, 2 more districts were included. Currently, Delhi has 11 districts– 

(i) North; (ii) North-East; (iii) North-West; (iv) West; (v) South; (vi) South-West; (vii) South-East, (viii) New- Delhi; (ix) Central; (x) Shahdara; and (xi) East. 

Does the National Capital Territory of Delhi have a bicameral legislature?

No, the NCT of Delhi does not have a bicameral legislature. The UTs of Jammu and Kashmir and Puducherry also have a unicameral legislature. 

What is the strength of the Delhi Legislative Assembly?

The legislative assembly of the NCT of Delhi has 70 elected members and 7 councils of ministers in accordance with Article 239AA. 

References

• M.P. Jain, Indian Constitutional Law, Wadhwa Publication Nagpur, 5th Edn. 2003, Rep 2004
• https://www.britannica.com/place/Delhi 
• https://www.britannica.com/summary/Delhi 
• http://www.dpceonline.it/index.php/dpceonline/article/download/1037/1011 
• http://www.oaijse.com/VolumeArticles/FullTextPDF/722_20.THE_GOVERNMENT_OF_NATIONAL_CAPITAL_TERRITORY_OF_DELHI_(AMENDMENT)_ACT,_2021__A_CRITICAL_ANALYSIS_.pdf 
• https://www.scconline.com/blog/post/2023/05/13/explained-supreme-court-judgment-settling-tussle-between-delhi-govt-and-centre-legal-news/ 
• https://blog.ipleaders.in/government-of-nct-of-delhi-v-union-of-india-2019-case-study/ 

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