This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a case analysis of the Government of NCT of Delhi v. Union of India (2019) which deals with the distribution of powers between the elected government of NCTD and the Central Government.

Introduction 

The landmark case of Government of NCT of Delhi v. Union of India (CIVIL APPEAL NOS. 2357 of 2017) that appeared before a bench of former Chief Justice of India Dipak Misra, Justices Kumar Sikri, Ajay Manikrao Khanwilkar, A Bhushan, DY Chandrachud, and A Sikri of the Supreme Court of India was concerned with the issue of the status of the National Capital Territory of Delhi (NCTD) and, in particular, the administration of NCTD, the powers and functions of the elected Government of NCTD (GNCTD) vis-à-vis the Central Government (or, to put it another way, the Lieutenant Governor (LG) of GNCTD, as a nominee of the President of India). This controversy centered on how Article 239 AA of the Indian Constitution should be interpreted. The present article deals with the case analysis of the discussed case. 

Facts of the case

The central issue pertaining to the present case that appeared before the Delhi High Court in the writ petitions was concerning the powers that an elected government of NCTD may exercise and the way in which NCTD could be run. As previously stated, the President of India governs a Union Territory under Article 239 of the Indian Constitution, and he/she can do so through an Administrator whom he/she appoints with the suitable designation. Administrator or Lieutenant Governor is a common example of such a title. The designation of Lieutenant Governor has been already given in Delhi.

To put it succinctly and precisely, the High Court of Delhi decided that as NCTD is a Union Territory, the President continues to manage both NCTD as well as the Union Territory. The latter comes under the ambit of the Central Government, and his nominee, the Lieutenant Governor. Both have overlapping powers. When these appeals were heard by the Division Bench of the Apex Court, the Division Bench determined that the questions addressed were of fundamental constitutional significance and that they required to be referred to a Constitution Bench under Clause 5(5) of Article 143 of the Constitution of India.

As a result, the cases were submitted to a Constitution Bench to resolve the aforementioned question, namely, the breadth and ambit of the GNCTD’s powers in comparison to those of the Lieutenant Governor. In a ruling dated July 4, 2018, the Constitution Bench answered the different intricacies of the ordinarily complex and ticklish problems. There were three points of view; Justice Dipak Misra, former Chief Justice of India wrote the majority decision to which Justice Khanwilkar and Justice A.K. Sikri had concurred. Justice Dr. D.Y. Chandrachud and Justice Ashok Bhushan had delivered two independent opinions. All of these appeals were instructed to be listed before the Regular Bench for resolution of the particular problems and conflicts that emerge in these appeals after delivering answers to the moot questions that had arisen.

Issues 

The issues that were considered by the Supreme Court of India in light of the present case have been provided hereunder: 

  1. Whether posting orders of public services are to be passed by the President of India (or for that matter the Lieutenant Governor) or it is the Government of NCTD which is competent to exercise such power once the manpower is assigned to it?
  2. Whether the GNCTD is competent to pass executive order under Delhi Electricity Reforms Act, 2011 and Delhi Electricity Reforms (Transfer Schemes) Rules, 2001 without placing the matter before the Lieutenant Governor for his views/concurrence?
  3. Whether the Lieutenant Governor, empowered by the Ministry of Home Affairs, Government of India empowered to direct ACB Police Station, to not take cognizance of offences against officials of Central Government, if also they are not posted in Delhi? 
  4. Whether the Lieutenant Governor has the authority to appoint Public Prosecutors under Section 24 of the Code of Criminal Procedure, 1973 (CrPC), to the exclusion of the GNCTD, or does the GNCTD have the authority to appoint Public Prosecutors, including Special Public Prosecutors in particular cases?
  5. Whether GNCTD is empowered to set up a Commission of Inquiry of its own  under the Commission of Inquiry Act, 1952 and without placing the matter before the Lieutenant Governor for his views/concurrence?

Contentions of parties

The arguments presented before the Delhi High Court by both the parties to the case have been discussed hereunder. 

Submissions by the appellant

The ruling of the Delhi High Court was challenged in the Supreme Court by the appellant. Senior Advocates Gopal Subramanian, P. Chidambaram, Shekhar Naphade, Rajiv Dhawan and Indira Jaising, were among the attorneys who defended the appellants.

  1. The LG, according to P. Chidambaram, is not a Viceroy. He is the President’s agent, and his authority is entirely dependent on the President’s preferences. The LG is making a mockery of the democratic process. The LG is obligated to act on the Governor’s help and advice under the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business regulation. If there are any disagreements, the President will make the final decision.
  2. Indira Jaising stated that Article 239 AA should be read to avert constitutional instability and establish that the Delhi government’s executive and legislative powers are coextensive. According to Article 239 AA (3), the Delhi legislative assembly has legislative jurisdiction over all topics except three on the State List and all subjects on the Concurrent List. There has to be a separation of powers between the Centre and the Delhi government so that the Delhi government can function smoothly without interference from the Centre.
  3. Gopal Subramanium contended that the people of Delhi had the authority to elect their own legislature and administration, as well as to adopt and enforce laws based on the State List entries. He went on to say that Article 239 AA establishes a distinction between the executive and legislative branches of government, which is the core of representative democracy. As a result, the legislature should have complete jurisdiction over the execution of laws, and no other authority should be able to interfere with this vital duty. The Governor’s influence produced delays and paralyzed the government. He demands his input on every matter; he overrules official decisions without even mentioning the government. The Lt. Governor of Delhi should be a ceremonial rather than an actual head of state.
  4. Advocate Rajeev Dhawan stated that, unlike Puducherry, Delhi has a responsible government rather than a representational government. The LG has no authority over Delhi’s affairs. Only the council of ministers has this authority. Only two circumstances allow the LG to intervene in Delhi’s affairs: 
  1. If Delhi is threatened or if it exceeds its authority. 
  2. If there is a disagreement between the LG and the Council of Ministers, it should be handled through dialogue first, and then reported to the President if no settlement is achieved. The government’s position is unrestricted since it is chosen by the people.

The appellant further stated that the NTCD holds a unique place under the Indian Constitution as a result of the introduction of Articles 239 AA and 239 AB, as well as the Government of National Territory of Delhi Act 1991 (GNCTD Act, 1991). It has given Delhi unique qualities that are only granted to full-fledged states under the Constitution. The appellant contended that, after the revision and promulgation of the Government of National Territory of Delhi Act 1991, Delhi now has greater administrative powers than other union territories.

Submissions by the respondents 

On behalf of the respondents, Maninder Singh, the Additional Solicitor General of India, appeared with a group of attorneys that included Sr. Adv. V. Mohana, Prateek Jalan, Sr. Adv Sidharth Luthra, and others. 

  1. Despite the addition of Article 239 AA, the respondent maintained that the President remained the executive head. The President acts through the Lieutenant Governor, and the power of the legislature is unaffected by the addition of Article 239 AA in the Indian Constitution. 
  2. According to Manider Singh, the Delhi government’s involvement is limited to municipal governance. The Delhi Fire Services Act, 2007, and the DANICS Act, 2003 are examples of central law. The LG has the power to overrule the Council of Ministers in a variety of areas, including public order, law enforcement, and land disputes. The President, acting via the LG, is the head of state of Delhi, which is a Union Territory. The appellant argued that the Delhi legislative assembly is a democratically elected body. The Union of India has a democratically elected government as well. They are better because they are elected by the people of India. Inspite of its unique status, Delhi is not a state. Despite the fact that it has a legislative assembly, it is a Union Territory and is thus subject to the President of India. There is no mention of Delhi in the list of states, and it would be undemocratic to claim that the Union of India and the Delhi Legislative Assembly have the same powers. He further claimed that Article 239 AA was not a valid provision. The legislative branch is in charge of everyday necessities, whereas the administrative branch is headed by the President and the Centre.
  3. Maninder Singh further claimed that just three of the 650 files received in the previous three years resulted in a dispute. The distribution of powers between the Centre and the city government over the governance of the national capital cannot be broken down between the tiers of government. The appellants admitted that they are not a state, yet still claimed state powers, which is unlawful.
  4. According to the respondents, the constitutional plan for union territories has already been addressed in the Delhi Municipal Corporation case. The Court divided Union Territories into three categories, and Delhi, although being the National Capital Territory, is still a Union Territory. The respondent argued that the Court should construe Article 239 AA and the GNCTD Act 1991 to reflect the correct understanding of the Balakrishnan report. Article 239, according to the respondents, is an essential feature of Part VIII of the Indian Constitution. It was suggested that Article 239 be interpreted in conjunction with Article 239 AA. The administrative authorities should reside with Delhi, according to Article 239 of the Constitution.
  5. The respondent drew the Court’s attention to Articles 53 and 73 of the Constitution, as well as Article 246(4). The respondent stated that the right of the council of ministers to use executive powers is not specified anywhere in Articles 239 and 239 AA. The respondent further claimed that the wording “Lieutenant Governor and his Ministers” in Article 239 (4) had nothing to do with the “LG and Council of Ministers.” This demonstrates that the LG is in charge of the administration.
  6. The respondent had argued that Articles 239 AB and 356 are not the same things. In an event when the constitutional machinery fails, Article 356 states that the President will be given all of the state government’s and governor’s powers. As the executive power is vested in the President, this provision does not apply to union territories. Article 239 AA does not provide for the assumption of power, rather it provides for the suspension of Article 239 AA’s operation if the President deems it essential. The respondents further claim that clause 4 of Article 239 AA is analogous to Section 44 of the Government of Union Territories Act of 1963.

Judgment 

The judgment of the present case has been divided into ratio decidendi and obiter dicta. The same has received its discussion below. 

Ratio decidendi 

  1. If any provision of a law passed by the Legislative Assembly with respect to a matter is in conflict with any provision of a law passed by Parliament, then the latter will prevail and the former will be repealed. This is with respect to matter, whether passed before or after the law passed by the Legislative Assembly, or of an earlier law, other than a law passed by the Legislative Assembly.
  2. If the legislation passed by the Legislative Assembly has been reserved for the President’s consideration and has obtained his/her assent, it will take effect in the National Capital Territory. This shall not prevent the Parliament from implementing any legislation relating to the same issue at any time, including a bill supplementing, modifying, altering, or repealing the law established by the Legislative Assembly.

Obiter dicta

Constitutional morality refers to the morality embodied in the constitutional standards and the Constitution’s conscience. Any behavior that seeks to justify itself must have the capacity to be in accordance with constitutional motivation. To realize our constitutional vision, all people, particularly high-ranking officials, must instill a spirit of constitutional morality that rejects the concept of concentrated power in the hands of a few. All three organs of the State must preserve the Constitution’s faith in them by being true to the Constitution. The choices made by constitutional officials, as well as the method by which they are made, must be normatively sound and acceptable. As a result, such choices must be made in accordance with constitutional objective principles and in harmony with the spirit of the Constitution. The Constitution, as the highest instrument, envisions the notion of constitutional government, which includes the concepts of fiduciary public authority and the checks and balances system as twin limbs. Constitutional governance, in turn, breeds the necessary constitutional trust that all constitutional officials must demonstrate while fulfilling their official responsibilities.

Landmark cases mentioned in the judgment 

The landmark cases that have been referred to by the Bench while deciding on the case of Government of NCT of Delhi v. Union of India (2019) have been provided with an elaborative explanation hereunder.

Samsher Singh v. State of Punjab (1974)

It was observed in the case of Samsher Singh v. State of Punjab (1974) that an administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own. In light of the present case of Government of NCT of Delhi v. Union of India (2019), it was held that the fundamental functional difference between the Governor and the President on one hand, and the Administrator on the other, is so stark that it is impossible to rely on the Samsher Singh decision as a precedent in this case.

NDMC v. State of Punjab (1997) 

In the case of NDMC v. State of Punjab (1997), it was observed that except when he/she is obliged by or under the Indian Constitution to exercise his/her powers at his/her discretion, the Governor of a State is bound by the help and advice of his/her Council of Ministers in the execution of his/her functions, as per Article 163. As a result, the Governor can only act in his/her own judgment if the Constitution expressly permits it.

Bir Singh v. Delhi Jal Board and Others (2018)

The Supreme Court of India while deciding the landmark case of Bir Singh v. Delhi Jal Board and Others (2018) have opined that all Union Territories’ services are services of the Union. For example, in Delhi, the IAS, DANICS, and DASS cadres, as well as teachers and physicians, are all Union services, and the recruiting regulations were developed with the permission of the President or a nominee of the President, the Lieutenant Governor.

Union of India v. Prem Kumar Jain and Others (1976)

For the purposes of Article 312 of the Indian Constitution, a four-judge bench of the Supreme Court decided that the term ‘State’ encompasses a Union Territory, in the case of Union of India v. Prem Kumar Jain and Others (1976). A State specified in the First Schedule to the Constitution shall include a Union Territory for any period after the commencement of the Constitution (Seventh Amendment) Act, 1956. It is therefore impossible to argue that there was anything repulsive in the subject or context that rendered that term inapplicable.

Pandit Ukha Kolhe v. State of Maharashtra (1963)

While deciding the present case of Pandit Ukha Kolhe v. State of Maharashtra (1963), the Supreme Court of India had observed that it is true that jurisdiction to legislate on topics connected to Criminal Procedure Code, 1973 and Indian Evidence Act, 1872  is found in the Third List of the Constitution’s Seventh Schedule, and the Union Parliament and the State Legislature have concurrent authority in these areas. The expression “criminal procedure” in the legislative entry includes investigation of offences, and Sections 129A and 129B of the Delhi Laws Act, 1912 must be regarded as enacted in the exercise of the power conferred by Entries 2 and 12 in the Third List.

Rev. Stainislaus v. State of Madhya Pradesh (1977)

In the case of Rev. Stainislaus v. State of Madhya Pradesh (1977), the Supreme Court had discussed the ambit of the term ‘public order’. The Court had observed that convictions, searches, seizures, and arrests are all part of ‘public order,’ as are investigation, prosecution, trial, and if convicted, sentenced execution. All of these elements must be interpreted together.

State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru (2005)

One of the defence arguments in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru (2005) was that proper sanction had not been acquired under Section 196 of the Code of Criminal Procedure, 1973 in order to prosecute the accused people. The Supreme Court of India observed that the Lieutenant Governor had acted in exercise of powers provided by sub-section (1) of Section 196 CrPC read with the Government of India, Ministry of Home Affairs notice dated 20-3-1974, in granting the sanction under Section 196 CrPC. Therefore, the Lieutenant Governor was given the authority to issue sanctions under such notification.

Goa Sampling Employees’ Association v. General Superintendence Co. of India (1984)

In the present case of Goa Sampling Employees’ Association v. General Superintendence Co. of India (1984), the worker had raised a disagreement and a referral in the framework of Section 2(a) of the Industrial Disputes Act, 1974 which deals with the concept of “Appropriate Government.” In this instance, the Central Government appealed to the Industrial Tribunal. The management contested the jurisdiction of the Central Government to make the referral, claiming that the Central Government was not the ‘appropriate government’ in connection to the Union Territory. The industrial tribunal dismissed this claim, but the High Court upheld it, stating that the administrator of the Union Territory of Goa, Daman & Diu shall be the administrator who can make the referral. The Supreme Court of India overturned the High Court’s decision and affirmed the industrial tribunal’s decision that the Central Government was the Appropriate Government in respect of Union Territory.

State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal & Ors (2004)

The Supreme Court of India had noted in the case of State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal & Ors (2004) that the competence to announce minimum rates for land value (circular rates) is related to Entry 18 of List II of the Indian Constitution, is the Union’s jurisdiction only and the term “entry” in the Seventh Schedule of the Constitution is to be interpreted as broadly as possible.

Ram Jawaya Kapur v. State of Punjab (1955)

The Supreme Court while deciding on the case of Ram Jawaya Kapur v. State of Punjab (1955) has noted that Article 239-AA(3)(a) of the Indian Constitution reserves Parliament’s legislative jurisdiction over all issues in the State List and Concurrent List, while clause (4) makes no similar reservation for the Union’s executive authorities. Clause (4) expressly accords the Government of Delhi with executive powers regarding issues over which the Legislative Assembly has legislative authority. The Assembly has the capacity to make law, but the executive must carry out the policy of the legislation, which requires the Government of Delhi to have coextensive executive powers.

Observations of the Court 

The Supreme Court of India made the following observations in light of the present case of Government of NCT of Delhi v. Union of India (2019):

  1. After over seven months of deliberation, the Supreme Court issued a landmark decision on July 4th, 2018, declaring that the Lt. Governor of Delhi is bound by the Council of Ministers’ aid and advice, save in areas of land, police, and public order. The Supreme Court of India had dismissed the writ petition that was filed before it thereby upholding the judgment of the Delhi High Court. CJI Dipak Misra issued three distinct and concurring decisions on behalf of himself, Justice A.K Sikri, and Justice Khanwilkar. Justice DY Chandrachud and Justice Ashok Bhushan gave separate judgments but shared the same opinion.
  2. While pronouncing his verdict, CJI Misra stated unequivocally that the NCT of Delhi cannot be awarded the status of a state under the current constitutional structure. The Constitution does not allow for “absolutism” or “anarchy.” By granting the NCT of Delhi some required independence, the concepts of pragmatic federalism and federal balance will triumph. This is completely based on the Constitution’s limits. The relationship between the Council of Ministers and the LG, according to CJI Misra, should embody positive constructionism’s ideology of profound sagacity and judiciousness.
  3. The interpretation of constitutional provisions, according to Justice Bhushan, should be dependent on the necessities of the moment. According to him, the LG’s powers under Article 239 AA “shall be utilized on constitutionally relevant topics.” The Bench further found that the LG should not operate in a “mechanical fashion” by referring every decision of the Council of Ministers to the President without adequate consideration. In his 123-page verdict, Justice Ashok Bhushan also stated that the Delhi Legislative Assembly represented elected representatives, and that “their choice and opinion must be honored in every way possible.”
  4. According to Justice DY Chandrachud, the LG should be aware that the Council of Ministers, which gives help and advice, is elected to serve the people and embodies both the obligations and ambitions of democracy. If there is a disagreement between the Council of Ministers and the LG, Justice Chandrachud believes it should be handled via conversation and discussion. The Balakrishnan Committee report was also mentioned by Justice Chandrachud.
  5. It’s worth noting that the phrase “with respect to any of the topics mentioned in List II of the Seventh Schedule” that appears in Article 246 clause (3) of the Indian Constitution, grants the exclusive right to enact laws for such State or any portion thereof. The phrase “in so far as any such matter is relevant to Union Territories” in Article 239AA(3)(a) has a distinct connotation. The Constitution distinguishes between the legislative powers of the state and the legislative powers of the Union Territories, as evidenced by the use of these phrases. The Parliament was fully aware of the operation of the Union Territories, as well as the scope and controls of powers to be handed to the Union Territories by constitutional amendment when it inserted Article 239AA into the Constitution.
  6. As the Legislative Assembly of the GNCTD does not have access to Entry 41 of List II of the Constitution’s Seventh Schedule, there is no need for the GNCTD to exercise any executive power in relation to “services”. The GNCTD’s executive power under Article 239AA(4) extends to matters over which the Legislative Assembly has the power to make laws. In terms of “services,” the GNCTD can only use those executive powers that are available to it under any statute enacted by Parliament, or those executive powers that have been assigned to it.

Analysis 

The fiduciary character of public authority and the system of checks and balances are two important concepts of constitutional government. To avoid constitutional disagreement, there should be a healthy cohabitation as well as an interdependence between the Union and the state governments. A collaborative federal architecture is required. Delhi’s standing is unique and in a class by itself. The position of Lt. Governor is not the same as that of a state governor. He is still in charge of the administration. All subjects on the state list and concurrent list are subject to legislative action by the parliament for the NCTD. The addition of Article 239 AA (3) makes this feasible. 

The Delhi Legislative Assembly has the authority to enact legislation on the concurrent list and the state list, with the exception of police, land, and law and order in the state list. However, if the Parliament passes legislation on matters covered by the State List or the Concurrent List, the State must follow the law passed by the Parliament. As a result, Parliament has the authority to overrule. When clauses 3(a) and 4 of Article 239 AA are read together, the executive power of the Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly. The need for prior approval of the Lt. Governor will jeopardize the values of representative administration and democracy envisioned under Article 239 AA of the Constitution for the NCT of Delhi. 

The Bench stated that the Lt Governor should have a neutral stance with the Council of Ministers. He should serve as a mediator. The bench further stated that the government and constitutional officials must be treated with respect and that those in positions of power must understand that they are working for the benefit and welfare of the people. Neither the state nor the LG should feel lionised, and they must understand that they are fulfilling their constitutional obligations.

Conclusion 

More litigation is expected as a result of the present Supreme Court’s decision. Putting such reliance on the constitutional officers in charge of Delhi’s administration looks to be wrong. In the governance of Delhi, how the parties interpret Article 239 AA (4) currently rests on their wisdom. The decision is only concerned with constitutional principles. It makes no mention of how it would be implemented in practice, which might lead to further lawsuits. So, despite the fact that the decision has been issued, there is still a great deal of friction between the Delhi administration and the LG.

References

  1. https://indiankanoon.org/doc/69467663/.
  2. https://www.scobserver.in/cases/government-of-nct-of-delhi-v-union-of-india-special-status-of-delhi-case-background/.
  3. https://www.scconline.com/blog/post/2019/02/14/breaking-delhi-vs-centre-powers-demarcated-split-verdict-on-power-to-transfer-and-appoint-officers/.

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