This article is written by Aarchie Chaturvedi, a 1st-year student currently pursuing BA-LLB from National University of Study and Research in Law, Ranchi. This is an exhaustive article covering provisions of Article 239, 240, 241 and 244 of the Indian Constitution and including some landmark judgments.

Introduction

The contrasting arguments of the public, the discrete claims of the parties to the suit and the varied methods of reasoning and logic presented by the judges during the case of NCT of Delhi v/s Union of India have yet again attracted the attention of the masses towards understanding the provisions of Article 239  of the Indian Constitution. There were various disputes in this case as to whether the Lieutenant governor of the National Capital Territory of Delhi was bound by the aid and advice of the Council of Ministers of the Delhi Government, whether Delhi was a Union Territory or not, whether provisions of Article 73 were applicable to NCT of Delhi or not. However, all the voices were silenced, after the judgment of the Supreme Court, which held that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the Delhi Government and also has the power to disagree to the Council of Ministers if needed. Now to understand the constitutionality or the rationale behind this judgment we need to know in detail about the nitty-gritty of Article 239 of the Indian Constitution.

In addition to this, in this blog, we will also be dealing with Article 244 of the Indian Constitution, which makes some different laws for yet another region of India i.e the Scheduled Areas.

Administration of Union territories

Article 239 which deals with the administration of Union Territories like Delhi, is our exponent of study here. Now before beginning with the administration of Union Territories, it is essential to know what constitutes the Union Territories.

States and territories under the First Schedule, in Part C and Part D respectively were replaced by the Union Territories, under Part II of the First Schedule. This was done in the 7th Amendment Act, 1956. 

At that time Union Territories were six in number namely, Delhi; Himachal Pradesh; Manipur; Tripura; Andaman & Nicobar Islands; Laccadive; Minicoy and Amindivi Islands.

However after successive Amendment Acts, the following belong to the list of Union Territories:

1. Andaman & Nicobar Islands;
2. Chandigarh;
3. Dadra & Nagar Haveli;
4. Delhi;
5. Daman and Diu;
6. Lakshwadeep;
7. Puducherry;
8. Jammu & Kashmir;
9. Ladakh.

The need for forming of the Union Territories was safeguarding the rights of indigenous cultures, averting political turmoil related to governance matters, etc. For these reasons the status of “Union Territory” may be assigned to an Indian sub-jurisdiction.

Now coming back to what Article 239 talks about. Article 239 begins by stating that the administration of every Union Territory shall be done by the President to such extent as he thinks fit. An administrator can also be appointed by the President as and when he feels. Clause (2) of the same article states that the President can appoint the Governor of a State as the Administrator of an adjoining Union Territory and after such an appointment, the Governor may exercise his power and execute his functions independently of his Council of Ministers.

Creation of legislature or Council of Ministers for Union territories 

Moving forward to Article 239 A(1) of the Indian Constitution which states that a Parliament through law can enact a body that can function as a Legislature for the Union Territory of Puducherry consisting of:

• elected or partly elected or partly nominated persons,
• or can make a body consisting of the Council of Ministers,
• or can create both of these with the constitutional powers and functions vested to the Parliament.

Clause (2) of Article 239A further states that irrespective of anything mentioned in the above-stated Clause (1), that has the effect of amending the Constitution or is any amendment to the Constitution by the way of Article 368, shall not be deemed to be an amendment or a change to the constitution.

Special Provisions with respect to Delhi

Special provisions are enshrined for the creation of Legislature or for the creation of a Council of Ministers under Article 239 AA of the Constitution with regards to Delhi. It states that from the beginning of the Constitution (69th Amendment) Act, 1991, Delhi shall be called the National Capital Territory of Delhi and the administrator then appointed shall be referred to as the Lieutenant Governor.  

At present, the Government of Delhi is the authority governing the National Capital Territory of Delhi and its 11 districts. The body of the Government of Delhi consists of the judiciary, legislature, and executive headed by the Lieutenant Governor.

Legislative Assembly for National Capital Territory

Clause (2)(a) of Article 239 AA further also states that a Legislative assembly will be formed in the NCT of Delhi whose members will be selected by the process of direct election from territorial constituencies. 

The total number of members, the reservation of the members of the Scheduled Castes, the division of National Capital Territory into territorial various constituencies, the basis for dividing NCT of Delhi into constituencies and all other such matters relating to the functioning of the Legislative Assembly are under the direct supervision and control of the Parliament as stated in Clause (2)(b) of Article 239AA.

It is also mentioned in Clause (2)(c) of Article 239 AA that the provisions of Article 324 to 327 and 329 as they apply to a State, the Legislative Assembly of the State, and the members of the Legislative Assembly of the State, will also, in the same manner, apply to NCT of Delhi, Legislative Assembly of Delhi, and the members thereof.

The Legislative Assembly is also empowered to make laws for matters listed in the State List and the Concurrent List, as far as any such matter is relevant to the Union Territories except for matters in relation to Entries 1, 2 & 18 of the State List and matters of Entries 64, 65 and 66 of the same list if they are in relation to Entries 1, 2 & 18.

However, Clause (3)(b) of Article 239 AA states that nothing in the above-mentioned clause shall prevent or hinder the powers of the Parliament from making any law in relation to the matters of the Union Territories or any part.

Yet the powers of the Legislative Assembly are restrained by Clause (3)(c) of Article 239 AA which states that any law made on any matter which is unacceptable to the law of the Parliament, or any other earlier law, shall to the extent of such unacceptability be void. Even when, after the law passed by the Legislative Assembly a law is passed by the Parliament, and the law passed by the Legislative Assembly then holds to be unacceptable as per the law passed by the Parliament, then that law to the extent of unacceptability shall be void. 

Nonetheless, if some law made by the Legislative Assembly is waiting for the assent of the President and the President gives his assent to it then that law shall prevail in the National Capital Territory of Delhi.

Provided further in this sub-clause is that nothing shall then also limit the Parliament from making any law so as to add or to vary from or to amend or repeal the law made by the Legislative Assembly.

Council of Ministers

Clause (4) of Article 239 AA talks about the Council of Ministers in relation to the National Capital Territory of Delhi. 

• It states that the total strength of the Council of Ministers shall not exceed more than 10 percent of the Legislative Assembly.
• The Chief Minister shall be the head of such a body of the Council of Ministers.
• The Chief Minister shall be assigned by the President and the other Ministers shall also be assigned by the President on the advice of the Chief Minister and shall hold their offices during the pleasure of the President (Clause (5) of Article 239 AA). 
• The Council of Ministers so elected shall remain responsible collectively to the legislative assembly (Clause (6) of Article 239 AA). 
• The Chief Minister’s duty includes aiding and advising the Lieutenant Governor in the execution of his functions until and unless the Lieutenant Governor is himself empowered to make laws at his discretion. If there is a dispute regarding the difference of opinion between the Lieutenant Governor and his Ministers than the dispute should be referred to the President whose decision would be final and binding. Still, in urgent situations, where the Lieutenant Governor feels that waiting for the President’s decision could have a worsening effect than in those situations, the Lieutenant Governor is empowered to take immediate action till the further orders of the President.

Parliament’s power to give effect to or to supplement the aforesaid provisions 

Parliament under Clause (7)(a) of Article 239 AA has the power to make laws to augment or to provide strength to any of the provisions explained above or in relation to any matter resulting thereto.

However, Clause (7)(b) also states that any law made under the above-mentioned clause shall not be an amendment to the Constitution under Article 368.

Clause (8) of this section further states that the provisions of Article 239B will apply to NCT of Delhi, the Lieutenant Governor and the Legislative Assembly in the same way as it applies to the Union Territory of Puducherry, the Administrator of Puducherry and the Legislature of Puducherry respectively. It also mentions that any reference to Clause (1) of Article 239A will be deemed to be a reference to this article (i.e Article 239 AA) and Article 239AB as the case may be. 

NCT of Delhi  v/s Union of India

Now, after explaining the provisions of Article 239 AA which deals with Delhi, let’s come back to the famous case of NCT of Delhi v/s Union of India, mentioned at the beginning of the blog and try to understand its basics. As per Article 239 AA, public order, police, and law are under the jurisdiction of the Central Government whereas the other matters in the State List or the Concurrent List as far as they are applicable to the Union territories fall under the jurisdiction of the Legislative Assembly. 

In the current scenario, Delhi is divided into 3 scales of governance:

• First area being under the control of elected Central Government through a LG exists as the administrator;
• Second area under the supervision of elected representatives (MLAs) of Delhi Assembly; 
• Third being areas falling under elected representatives (Mayor & Corporators) of municipal bodies, of which the management and control are in the hands of Commissioners appointed by the Central Government.

The root of the case lies in the appeal filed by Aam Aadmi Party (the government of Delhi) against the Delhi High Court’s decision stating that the Lieutenant Governor is the region’s sole administrator. The Center passed a word on May 21, 2015, granting some rights to the Lieutenant Governor which according to the Aam Aadmi Party’s claim were “unprecedented powers”. From then on there were clashes between the Aam Aadmi Party and the Lieutenant Governor followed by strikes, protests, etc. which lead to this suit, being ultimately filed in the year 2018 in the Supreme Court for hearing for the request of justice.

The judgment  pronounced by the Supreme Court  had the following main points:

• While giving the judgment in this regard, Chief Justice Misra observed that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the Government of Delhi. He cannot act on his own. The Council of Ministers has to convey its decision to the Lieutenant Governor, but this does not mean that the Council of Ministers is bound by the recommendation of the Council of the Lieutenant Governor. All five judges off the bench also agreed to this point.
• Justice Chandrachud commented that the Lieutenant Governor’s consent was not compulsory to be obtained in every matter. Justice Ashok Bhushan also added his viewpoint on this aspect that the opinion and decision of the elected government has to be respected, but the Constitution does not provide that the Lieutenant Governor must agree with all decisions of the government.
• The judges said that “the status of NCT of Delhi is sui generis (unique) and the status of the Lieutenant Governor is also not that of a Governor. He remains an administrator, in a limited sense only. These factors only, according to the judges gave special status to Delhi as the NCT. The bench also held that stating that the region will be under the control of the Lieutenant Governor.

Justice Chandrachud added to this point that the court must continue with the values of democracy. He said that the real power and substantive accountability are vested in elected representatives in democratic governance. The sovereignty of the people, the democratic way of governance and secularism are intrinsic to the Constitution. The basic structure places constraints on the exercise of constituent power which according to him must also be kept in mind in this case.

b

Points of difference between the Lieutenant Governor & the Governor of Delhi & Puducherry respectively

Both Delhi and Puducherry have quite similar administrations and management. However, while talking about the functioning of the Lieutenant Governor in the context of both of these places there are few differences. The differences can be explained as below:

Provisions in case of failure of Constitutional Machinery

Article 239AB talks about the provision in cases of failure of constitutional machinery. Now in order to understand this, it is important to understand what is constitutional machinery.

Constitutional machinery refers to a body of the elected persons or the government of a particular territory who are/is obliged to manage the affairs of the particular territory according to the provisions of the constitution of that land. However if under certain circumstances there is a failure of the constitutional machinery, the President has to take action then.

The President on receiving a report from the Lieutenant Governor or if he is otherwise satisfied that certain situation has arisen under which it is difficult to carry on with the administration of the National Capital Territory of Delhi under Article 239AA or under any law made agreeable to it, or for the appropriate administration of NCT of Delhi it is a necessary and requisite condition to do so, may then suspend any operation done under Article 239 AA or under any provision made agreeable to it for a specified period and under specified conditions provided in such law. The President can also make any provisions resultant of such law as may deem fit to him for the proper administering of National Capital Territory of Delhi under Article 239 A and Article 239 AA. 

Power of administrator to promulgate Ordinances during recess of Legislature: Article 239 B

To understand the functioning of this article one needs to know what is an ordinance. An Ordinance is a law that can be enacted by a city, a commission or a country for purposes that are not mentioned in federal laws or state laws. Some examples are safety and building regulations.

Promulgate on the other hand means to put in action a law (or an ordinance here) by official proclamation.

Now, if we move on to understanding Article 239B we see that it states that except any time when the Legislature of [the Union Territory of (Puducherry)] is in session, if the administrator feels so or is satisfied that such circumstances exist which make it essential for him to take immediate action, then the administrator may promulgate such ordinances as he feels are required. 

However, no ordinance shall be allowed to be promulgated if a decision is given by the President in that particular matter for which the ordinance was required to be promulgated.

This clause further also mentions that the administrator during the period of dissolution or suspension of Legislature shall not promulgate an ordinance if such suspension or dissolution of Legislature was in accordance with Clause (1) of 239A or under any other such law.

Clause (2) of Article 239B whereas talks about those ordinances which are promulgated after following the directions of the President under his supervision. This clause says that all such directions shall be assumed to be the Act of the Legislature of the Union Territory. But every such Ordinance:

• Should be laid before the Legislature of the Union Territory and should after the expiry of six weeks from the time of reassembly of the Legislature come to an end.
• And any such ordinance as it was passed under the guidance of the President can be abnegated by the administrator on receiving the assent from the President for such withdrawal.

There is one more clause in this article which is Clause (3) under which it is mentioned that when an Ordinance is not valid if enacted in the Legislature of the Union Territory and has been made after observing the provisions in that behalf contained in Clause (1) of Article 239 A or any other such law, then that ordinance shall be void.

Power of President to make regulations for certain Union territories

These powers of the President are discussed under Article 240 of the Constitution. The President may make regulations for the peace, progress and good government of the Union Territory of:

1. Andaman & Nicobar Islands;
2. Lakshadweep;
3. Dadra and Nagar Haveli;
4. Daman and Diu;
5. Puducherry.

Still, there is a restriction to the powers of the President in this regard. The President shall only exercise his powers when the Legislature of the Union Territory is suspended or disbanded in relation to any law in accordance with Clause (1) of Article 239 A. The President shall also not exercise his power after the Legislature has been created i.e. from the date approved for the first meeting of the Legislature after its creation.

Clause (2) of Article 240, on the other hand, states that any law made for the Union Territory for the time being, in order to amend any Act made by the Parliament, when promulgated by the President shall have the same effect on the Union Territory as any Act of Parliament.

High Courts for Union Territories 

According to  Article 241 of the Constitution, Clause (1), the Parliament may by law constitute a High Court for a Union Territory or make a court in the territory to be the High Court for any such purposes made by the Constitution.

Clause (2) of Article 241 further states that the provisions of Part V and Part VI shall apply to High Courts of Union Territories as mentioned in the above clause, in a similar manner as they apply to other  High Courts under Article 214 unless any provision or specification as Parliament may by law provide.

Moving on to Clause (3), it states that every High Court that exercises jurisdiction on any Union Territory immediately before the formation of the Constitution will carry on to do so subject to the provisions of the Constitution or any law made by the Legislature. However, nothing prevents the Parliament from making any law to extend or to keep out the jurisdiction of the High Court of a State upon any Union Territory or any part thereof [Clause (4) of Article 241)]. 

Scheduled and Tribal areas                                                                                                                         

Coming on to the second main component of this blog, which is Scheduled Areas and Tribal Areas. Scheduled Areas and tribal areas presently exist in the states of Andhra Pradesh (including Telangana), Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan. 

As provided for in paragraph 6(1) of the Fifth Schedule to the Indian Constitution the specification of “Scheduled Areas” in relation to a State shall be, after consultation with the Governor of that State, notified by the order of the President. Pursuant to the provisions of paragraph 6 (2) of the Fifth Schedule of the Constitution of India, the President may, after consultation with the Governor of that State, increase the area of any Scheduled Area in a State and make fresh orders redefining the areas to be Scheduled Areas in relation to any State. The same applies to any alteration, increase, decrease, incorporation of new areas or withdrawal of any Orders relating to “Projected Areas”

There are no criteria for the creation of scheduled areas but some conditions that have become well known are:

• Prevalence of tribal population;
• Compactness and reasonable size of the area;
• A feasible working unit such as a district block or Taluk;
• Economic backwardness of this area as compared to the surrounding areas.             

This component of Scheduled and Tribal Areas is also dealt with in Part X of the Constitution of India.                                                                                               

Article 244 which talks about these, begins with Clause (1)  stating that the provisions of the 5th Schedule of the Constitution shall apply to the management and control of the Scheduled Areas and Scheduled Tribes in any State other than the state of Assam, Meghalaya, Tripura, and Mizoram. Clause (2) of the same article, however, states that the 6th Schedule of the Constitution shall apply to the administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram.

Article 244 A further talks that irrespective of anything stated in the Constitution, Parliament has the power  by law to form any free state from within the State of Assam consisting of all or any of the Tribal Areas specified in Part I of the table appended to paragraph 20 of the 6th Schedule and thereof create a body consisting of:

•  elected or partly elected or partly nominated persons;
•  Or can make a body consisting of the Council of Ministers;
• Or can create both of these with the constitutional powers and functions vested upon the Parliament.

Clause(2) of this article further states that any such law as referred to Clause (1) may in specific:

• Express the matters of the State List or the Concurrent List which the Legislature of the autonomous State( or free state)  will have the power to make laws upon, for the whole state or any part thereof, and whether it would be keeping out of the Legislature of the State of Assam or not.
• Elucidate the matters to which the autonomous powers of the state shall extend.
• Provide that any tax imposed by the State of Assam shall be assigned to the autonomous State in so far as the proceeds are attributable to the autonomous State.
• Provide that any mention of State in the constitution shall include the autonomous state also.
• Construct such provisions as are subsidiary or consequential or as are deemed necessary as the need of the hour.

An amendment or change in any law as to the provisions mentioned in the above clause shall have no effect unless the amendment is passed by the 2/3rd majority of the house present and voting. An exception to this is any amendment to sub-clause (a) or sub-clause (b) of Clause (2). This provision is stated in Clause (3) of Article 241.

And the last clause, Clause (4) states that irrespective of anything mentioned in this article, that has the effect of amending the Constitution or is any amendment to the Constitution by the way of Article 368, shall not be deemed to be an amendment or a change to the constitution.

Conclusion

The Constitution of India creates a law that is binding on every citizen of India. The laws are the same throughout the country, but keeping in view the special circumstances of a particular region or territory of India, different laws governing those areas were created. Laws like these are covered in Article 239 and 244 of the Indian Constitution. In this blog, beginning from the need for such provisions to the nitty-gritty of such provisions everything is explained in detail. This blog tries to prevent any misinterpretation or miscommunication or misconception with regards to the provisions of these Articles. And it is essential to explain these articles as they are the ‘talk of the hour’ in a country whose political awakening is increasing day by day.

References

1. http://www.aaptaxlaw.com/constitution-of-india/article-239-239a-constitution-administration-union-territories-creation-local-legislatures-council-of-ministers-for-union-territories-article-239-239a-of-constitution-of-india-1949.html
2. http://delhiassembly.nic.in/constitution.htm
3. http://delhiassembly.nic.in/constitution.htm
4. https://indiankanoon.org/doc/1144754/
5. https://indiankanoon.org/doc/1823046/
6. https://indiankanoon.org/doc/1364341/
7. https://indiankanoon.org/doc/1624304/

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