FEDERAL RELATIONS BETWEEN

DELHI GOVERNMENT AND LIEUTENANT GOVERNER

(Project towards submission of assessment in the subject of Constitutional Governance)

Submitted by: Submitted to:

Samay Tulsyan (2097) Ms. Sayantani Bagchi
Ajitesh Boora(2112) Assistant Professor
Semester II (Constitutional Governance)

NATIONAL LAW UNIVERSITY,JODHPUR

WINTER SEMESTER
(JANUARY TO MAY,2023)

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 ACKNOWLEDGEMENT

We would like to take this opportunity to extend our heartfelt gratitude to the people who
have played an indispensable role in the successful completion of this project. Firstly, we
thank our mentor and Constitutional Governance Assistant Professor, Ms. Sayantani Bagchi
who unfailingly extended his help and support throughout the course of this project. Lastly,
we are also thankful to the library staff for their cooperation and support in giving us access
to online e-book resources and other resources of academic interest

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 ABSTRACT

Legislation is an organ of Government and an important source of law to formulate the

procedure commenced by a competent authority. The necessity of understanding the
legislative intent behind these acts provides an insight that fulfils the political interests of the
national public at large. The in-depth analysis of the Government of national capital territory
(Amendment) Act 2021 pictures the role of power dynamics in the country, examining the
factors that infringe the fundamental, political and constitutional rights of the people. Political
science plays a significant role in classifying the various agendas raised by the legislative act
by uplifting the power administration of the country through exclusive jurisdiction. The
rigorous discipline to interpret the legal system that notifies to promote "harmonious relations
between the legislature and the executive." fails to consider the situation of NCT of Delhi by
occasioning the union government that nullifies the decision of state government by
overpowering the lieutenant governor of Delhi. The imbalance of power distribution in Delhi
between the Lt. Governor and CM challenges the basic governance structure of the country.
The principle of collective responsibility also got differed by the cabinet decision over the
controversial judgement of the GNCTD act. The paper focuses on affirmations that frustrate
the efforts of state government by establishing the potential for LG by necessarily granting
him an opportunity to exercise the powers in the state and how Supreme Court have
approached the same.

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 TABLE OF CONTENTS

Contents
TABLE OF AUTHORITIES.........................................................................................................................5
CHAPTER I: EVOLUTION OF LEGAL STATUS OF DELHI............................................................................6
CHAPTER II: BACKGROUND OF DISPUTES..............................................................................................6
CHAPTER III- ARE PROVISIONS DISCRIMINATORY?................................................................................7
CHAPTER IV- DECONSTRUCTING THE PARAMETERS OF GOVERNANCE IN DELHI..................................8
Interpretation of Law..................................................................................................................9
Premises for Court’s Approach................................................................................................10
CHAPTER V-CONCLUSION....................................................................................................................11

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 TABLE OF AUTHORITIES
Cases
National Capital Territory of Delhi v. Union of India, (2018) 8 SCC 501, 514.......................................10
Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : AIR 1974 SC 2192...............................................9
Statutes
239-AA of the Constitution of India......................................................................................................7
239-AB of the Constitution of India......................................................................................................7
Article 239 of the Constition of India....................................................................................................7
Constitution (Seventh Amendment) Act, 1956......................................................................................6
Constitution (Sixty-Ninth Amendment) Act, 1991................................................................................7
Delhi Administration Act, 1966.............................................................................................................7
Part C States Act, 1951..........................................................................................................................6
Section 130 of the States Reorganisation Act, 1956..............................................................................6
The Government of India Act, 1935, S. 94............................................................................................6
Other Authorities
Andre Béteille, ‘Constitutional Morality’ (2008) 43 Economic and Political Weekly 35, 42.................10
Constituent Assembly Debates, vol 7 (1948) 38....................................................................................9
George Santayana, Persons and Places: Fragments of Autobiography, 284 (Cambridge,
Massachusetts: The MIT Press, 1986)...............................................................................................6
Internet
‘Najeeb Jung v. Kejriwal Govt. : 5 Issues Over which they Fought Over [sic]’ (Hindustan Times, 22
December 2016) accessed 21 March 2019........................................................................................7
Articles
Palak Rastogi, Examining the Role of Power Dynamics between the Union and Delhi Government, 5
INT'l J.L. MGMT. & HUMAN. 1518 (2022)..........................................................................................8
Yash Dahiya, Govt. of NCT of Delhi and Ors. vs. Union of India: Tussle between the AAP Government
and the Centre, 1 INT'l J.L. MGMT. & HUMAN. 114 (2018)...............................................................8

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 CHAPTER I: EVOLUTION OF LEGAL STATUS OF DELHI
George Santayana, philosopher is believed to have said something to the effect that “Those
who do not remember their past are condemned to repeat their mistake.” 1It is essential to
understand the development of the Delhi in its current situation. Basically the constitutional
historical background of Delhi began when King George V put the seal on the proposal by
announcing the British India's capital shift from Calcutta to Delhi on 12-1911 and referred to
it as a Chief Commissioner's Province. Under the provision of the Government of India Act,
1919 Delhi continued to be a centrally administered territory. Under the Government of India
Act, 1935, a Federal Government was constituted and thus, the Federation of India came into
existence. But Delhi remained a Chief Commissioner's Province.2 After coming into force of
the Constitution of India, Delhi became a Part C State essentially controlled by the Union.

By operation of Section 130 of the States Reorganisation Act, 19563, the Government of Part
C States Act, 19514 was repealed. In the absence of a saving provision, the legislature
constituted for Delhi came to an end. By virtue of the Constitution (Seventh Amendment)
Act, 1956, 5the First Schedule now provided for only two categories, namely, the “State” and
“Union Territories”. Act specified six Union Territories, namely, Delhi, Himachal Pradesh,
Manipur, Tripura, Andaman & Nicobar Islands and Laccadive Islands. The Delhi was later
provided with a legislative assembly through an Act of Parliament but certain subject-matters
such as public order, police, etc. were excluded from its jurisdiction. Within a short span of
time, Delhi became a Union Territory (UT) which was to be administered by an administrator
appointed by the President. Later, the Delhi Administration Act, 1966 6was enacted to
provide for limited representative Government for Delhi through a Metropolitan Council and
after two decades, in the year 1987, the Balakrishnan Committee was set up to submit its
recommendations. The Commission recommended granting of a ‘special status’ to Delhi.
Consequently, the Constitution (Sixty-Ninth Amendment) Act, 1991 7 was passed

CHAPTER II: BACKGROUND OF DISPUTES

Delhi is a peculiar case, neither being a State, nor a Union Territory. So, Article 2398, which
deals with Union Territories, does not apply to Delhi. Instead, Delhi is governed by Articles
1
George Santayana, Persons and Places: Fragments of Autobiography, 284 (Cambridge,
Massachusetts: The MIT Press, 1986).
2
The Government of India Act, 1935, S. 94.
3
Section 130 of the States Reorganisation Act, 1956
4
Part C States Act, 1951
5
Constitution (Seventh Amendment) Act, 1956
6
Delhi Administration Act, 1966
7
Constitution (Sixty-Ninth Amendment) Act, 1991
8
Article 239 of the Constitution of India

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239-AA 9and 239-AB10, introduced by Sixty-ninth Constitutional Amendment in 1991. There
is a Council of Minister in the legislative assembly with the Chief Minister at the head to aid
and advice the Lieutenant in the exercise of his function in relation to matters with respect to
matters with the Legislative Assembly has power to make laws except public order, police
and land. There are 60 matters relating to the municipal governance that cannot be
administered without the approval of the Union Government.

Interparty rivalry was the cause of the list politico-legal dispute. Lieutenant Governor Najeeb
Jung appeared to obstruct the day-to-day decisions of Aam Aadmi Party (AAP) led Delhi
Government cabinet. This can be understood from various instances. Both the Union
Government and GNCT had issued various notifications pertaining to the subject-matters
which were within their jurisdiction. This led to various conflicts such as the powers of Anti-
Corruption Branch (ACB) in Delhi, various key bureaucratic appointments and their
interdepartmental transfers, and various other acts which were in its essence leading to an
administrative stalemate11. The legal issues arising out of this political dispute were brought
to the Delhi High Court which ruled against GNCT stating that the LG had ‘independent
decision-making power’ and was not bound by the ‘aid and advise’ of the Council of
Ministers. This decision was appealed to the Supreme Court which had to deal with the
powers of the LG as per the Constitution, the status of Delhi and other impugned notifications
of GNCT and Union which created a policy paralysis in Delhi.

CHAPTER III- ARE PROVISIONS DISCRIMINATORY?

The Government of the national capital territory of Delhi (Amendment) Act 2021 modified
the act of 1991, which gives primacy to the Union over an elected Government came into
force on April 27 2021. The significance of the sixty-ninth constitutional Amendment is very
surprising and drastic, exclusively with the purview of the union government. 12

 It amended sections 21,24,33, and 44 of the NCT of Delhi Act 1991.

 If there is a conflict between the council of ministers and Lt. Governor 'on any matter'
shall refer to the President for decision and act according to that decision.
 The Lt. governor to act on 'aid and advice of the council of ministers and act as an
administrator of the state.
9
239-AA of the Constitution of India
10
239-AB of the Constitution of India
11
‘Najeeb Jung v. Kejriwal Govt. : 5 Issues Over which they Fought Over [sic]’ (Hindustan Times, 22
December 2016) accessed 21 March 2019
12
Palak Rastogi, Examining the Role of Power Dynamics between the Union and Delhi Government,
5 INT'l J.L. MGMT. & HUMAN. 1518 (2022).

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  NCT of Delhi is governed by Article 239AA of the Constitution, which imposes
restrictions on the law-making power of the legislature of Delhi.
 The Lt.Governor of Delhi appointed by the President, according to art 239AA, the
elected legislature of NCT of Delhi cannot enact laws relating to entries 1,2 and 18 of
the state list, i.e. public order, Police and land.
 Under the Article 239AB, ' The President, on receipt from the lieutenant governor or
otherwise, is satisfied that a situation has arisen in which the administration of the
national capital territory cannot be carried on accordance with the provisions of Art
239AA of any law made in pursuance of that article; the President may by order
suspend the operation of any provision of Art 239AA.

The provisions of this act in nature are discriminatory towards the power stake of the elected
Government of NCT of Delhi. As an Author from Indian Express said, 'The act gives more
power to the Union and waters the power of the chief minister of Delhi 'the elected
Government's articulating tussle between Lt. governor and CM of NCT of Delhi(Mustafa,
2021)13. Delhi, being if vital importance to the India, needs administrative powers on
deciding the appointments of executive bodies limited to Delhi in order to function
efficiently.

But in respect to centre having control over police and stated thing other than executive body
makes sense considering the Delhi, being vital importance to the country, has diverse groups
and prone to attacks as major government headquarters are in Delhi itself.

CHAPTER IV- DECONSTRUCTING THE PARAMETERS OF GOVERNANCE IN

DELHI
The Supreme Court had answered various broad parameters regarding the governance of
Delhi and the powers of LG basing its reasoning majorly on cooperative federalism,
representative democracy and other allied concepts.

Interpretation of Law
Interpreting Article 239, it was made crystal clear by the court that a Union Territory has to
be administered by the President through a proxy administrator. The court distinguished
Article 239-A stating that it is a directory provision for Parliament to enact a law for giving
Puducherry an Assembly and cabinet as opposed to Article 239-AA which was obligatory on
Parliament to enact a law for giving an assembly to NCT of Delhi along with a cabinet

Yash Dahiya, Govt. of NCT of Delhi and Ors. vs. Union of India: Tussle between the AAP
13

Government and the Centre, 1 INT'l J.L. MGMT. & HUMAN. 114 (2018).

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coming from those elected members, thereby giving a very distinct status to NCTD. The
court noted that the Council of Minister was given executive powers under this Article and
the word ‘aid and advise’ used therein has to be interpreted so as to ensure that the LG can
only dissent from the decision of the cabinet in limited circumstances which are expressly
mentioned in clause 4 of the article. The court took cue from its landmark decision in
Shamsher Singh v. State of Punjab to hold such a view so as to ensure that the cabinet is
entrusted with the necessary authority to carry out the policies of which the Delhi Assembly
has legislative competence.14

The court also very cautiously stated that if the authority is given to LG to refer any matter to
the President, it must not be exercised capriciously and can only happen regarding the matters
which LG thinks are delineating beyond the entries stipulated for Delhi Government's
executive control. 15The words ‘any matter’ cannot be interpreted to include every matter so
as to create a policy paralysis and thus a constitutional trust based on morality is imposed on
LG who is the custodian of the executive powers to exercise such powers, not on extraneous
considerations. This was the most important aspect of the ruling keeping in view of the fact
that the court had pre-emptively restrained LG to mechanically refer every decision of the
AAP cabinet to the President in view of any influence that the Central Government might be
exercising over LG. 16Therefore, it was very foresighted of Justice Chandrachud to rule in his
opinion that only matters of ‘vital national interest’ could be referred to the President, thereby
imposing a restriction on the power of LG to refer the matters herein. Since, if the expression
‘any matter’ is to be read as ‘every matter’, it would lead to the President assuming
administration of every aspect of the affairs of Delhi, which was against the scheme of
Constitution. On a parting note, the court ruled that the 1991 Amendment had given Delhi a
unique status which reincarnated it into a constitutional hybrid which neither can be called a
Union Territory nor a complete State which was indeed entrusted with limited legislative and
executive autonomy for the benefit of its populace. As written before regarding how Delhi
Government needs to be given autonomy in deciding appointments of various bodies has
been negated on the basis that Delhi does not have State Public Commission.

14
Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : AIR 1974 SC 2192
15
Constituent Assembly Debates, vol 7 (1948) 38
16
National Capital Territory of Delhi v. Union of India, (2018) 8 SCC 501, 514.

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Premises for Court’s Approach

One of the most fundamental premises of the court's ruling was based on the datum of
popular sovereignty which is exercised through the representative form of government with
universal adult franchise being the main instrumentality to achieve this democratic object.
This premise is indeed correct according to the authors as evinced by the historical legitimacy
of such a principle of representative form of government. A republican and democratic form
of government was recognised as a basic feature of our Constitution. A representative form of
government has the elected representatives who become the lawmakers and executives as
entrusted agents of the people who are deemed as their principal. Needless to say, the very
first line of the preamble of our Constitution gives an inkling of this popular sovereignty and
the same has been expressly confirmed by the Supreme Court which ruled it as a corollary of
the core principle of self –determination.

Another notable issue which the court addressed was that of ‘constitutional morality’ as a
totem of our Constitution which mandates that despite all the diversities, we are ultimately a
part of a common deliberative enterprise, which envisages coordination and participation.
The court restated that such a nebulous concept has to be accepted to provide for a dynamic
approach to a Constitution which ‘is written in blood rather than ink17.’ The court also ruled
constitutional objectivity as a corollary of such a concept which uses the method of checks
and balances to achieve the same object.

Thirdly, the court laid stress on the principles of constitutional governance which
presupposed that the founding fathers had given the Constitution as a promise to the people.
The court emphasised that the constitutional principles are to be achieved by the
constitutional functionaries of the government with a sense of legitimate constitutional trust
in exercising their duties for the people. Furthermore, as a concomitant of this, the principle
of collective responsibility was stated, according to which the Cabinet has to be collectively
held responsible for its decisions despite differences between the members on certain
policies.

CHAPTER V-CONCLUSION
So, when we analyse the reference by the Lt. Governor to the President on the issue of the
appointment of prosecutor within the parameters laid down by the Supreme Court, I find that
it does not agree with these principles enunciated by the court. The structure of Lt. Governor

17
Andre Béteille, ‘Constitutional Morality’ (2008) 43 Economic and Political Weekly 35, 42.

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and the council of Ministers is the scheme adopted for the National capital Territory of Delhi
because of its special significance, and both are equally important to maintain constitutional
harmony. However, the present controversy shows there are still many areas that need to be
resolved. The supreme court must leverage the dispute based on the GNCTD amendment act
2021 to even resolve the jurisdictional conflict for a better future. Delhi State public
commission can be formed in order to have the basis for having autonomy in appointments
for bodies like ACB and others. The Lt. Governor being the state representative; it is easier
for him to secure a decision in his favour. The state government will be helpless in a
situation, so they are stressing upon cooperative federalism, but ultimately things are back to
square one in Delhi

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