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COMPARATIVE PUBLIC LAW

RELATIONSHIP BETWEEN CONSTITUTIONAL PROVISIONS

GOVERNING UNION TERRITORY OF DELHI

Submitted by:- Submitted to:-

Sourav Punia Dr. M.P Chengappa
LLM075223
WB NUJS
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Index

Serial no. Content Page no.

1. Abstract 3
2. Federalism in India 4
3. Article 239AA 5
4. How Union Territories Administered in India 6
5. Government of NCT v. Union of India (2019) 7
6. The Government of NCT of Delhi 10
(Amendment) Bill, 2023
7. Conclusion 12
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ABSTRACT

The National Capital Territory of Delhi (from now on referred to as Delhi) has
been recognized as a ‘sui generis union territory by the incorporation of Article
239AA via the sixty-ninth constitutional amendment for it provided for the
establishment of a legislative assembly for Delhi having legislative power
similar to that provided for the states under Article 245, except for entries 1,2,
and 18 of the state list and entries 64,65 and 66 of the concurrent list in so far as
they relate to entries 1,2 and 18 of the former.
The Supreme Court has recently held in Government of NCT Delhi v. Union of
Delhi that the executive power of Delhi shall be coextensive with its legislative
power, and any interference of the union government in such matters is
unconstitutional.
As per Article 239AA, the power of the Delhi government is, however, ‘subject
to other provisions of the constitution.’ This has resulted in a severe tussle
between the Union government and the Delhi government wherein the former
has been accused of infringing on the legislative and executive domain of the
Delhi government by passing the recent ordinance whereby the control over
eurocrats in Delhi was vested in a committee consisting inter-space alia of the
representative of the Indian Union.
The Supreme Court in Keshvananda Bharati vs. the State of Kerala has held
‘federalism’ to be the basic structure of the constitution of India. Also, any
unwarranted interference with the powers of an elected assembly is a mockery
of the principles of democracy. It is thus imperative to study the relation among
the several constitutional provisions governing Delhi to determine the contours
of its powers and the entailing limitations on the union government to clearly
demarcate the boundaries and thus protect the federal spirit of the constitution.
Through this research, the author wants to highlight the scope of the distribution
of powers in the background of the center vs. state tussle concerning the
distribution of powers.

Research Question
What are the boundaries of legislative and executive powers of the union
government and Delhi government vis-a-vis the National Capital Territory of
Delhi?
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Chapter-1
Federalism In India

Federalism
Federalism is of two levels of government, a system of government in which
powers are divided between centre and state. Central government, which
performs on the major issues of the country. The state government deals with
their day-to-day activities in their particular state. The Centre makes laws for
the country. States make laws for the specific state. The Constitution is the
source of authority for both administrations. Each government has its own set of
powers and exercises them independently within its sphere of other government.
As a result, neither is submissive to the other, yet both work together. The
concept of federalism in India was taken from the US and Australia by the
makers of the Indian Constitution, and they observed the requirements of the
country and the need for a system that would fulfill the needs of a vast and
diverse India.1

Quasi – Federal
India has a quasi–federal structure. In the landmark case of S.R. Bommai V.
Union of India (1994), the Supreme Court stated that India has a quasi-federal
structure. This case helped clarify the relationship between the country's central
and state governments. In this case, it was noticed that powers between the
central and state are unequal because of the strong central apparatus; India is
unitary bias and referred to as a quasi–federal state. In India's quasi-federal
system, the power is divided between the central and state governments, but the
central government has more authority and influence; this unitary bias ensures
that India remains a unified nation with a strong central apparatus, even though
it accommodates and recognizes the diversity and autonomy of its states. In
essence, India's quasi-federal system combines federal principles with a strong
unitary core, a unique approach to governance that seeks to maintain the unity
and integrity of the country while allowing for regional diversity and
decentralized decision-making.2

1
India a Federal or a Quasi-federal country: an insight, ipleaders, 8 April 2019
2
Quasi-Federal nature of Indian Constitution, Legalservicesindia
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Chapter-2
Article – 239AA

Article 239AA of the Indian Constitution is a crucial provision that deals with
the special status and governance of the National Capital Territory of
Delhi(NCT). It outlines the unique arrangement for the administration of Delhi,
India’s capital.
This article gives special status to Delhi, which was inserted in the 69th
Amendment Act. S. Balakrishnan recommended it. This article says that Delhi
has some special powers, which gives it a special status under this article. Delhi
was changed to the NCT of Delhi and will have an Administrator and a
Legislative Assembly. Legislative Assembly shall have the power to make laws
for NCT concerning the matters in the State List or Concurrent List. The
President of India appoints the administrator, known as Lieutenant Governor.
The administrator is an agent of the President, as the administrator has to either
act on the aid and advice of the Council of Ministers or is bound to implement
the decision taken by the President on a reference being made by him. The
Lieutenant Governor shall refer a difference on “any matter” with the Council
of Ministers to the President. Delhi’s unique arrangement of law and order,
while the Delhi Police is controlled by the Union Home Minister and the day-
to-day policing falls under the jurisdiction of the Lieutenant Governor. 3
It balances the regional aspirations of the local government and the overarching
national interests, particularly due to Delhi’s status as the capital. The unique
administrative arrangement of Delhi creates a distinct administrative setup for
Delhi, recognizing its role as the national capital and allowing for effective
governance. Article 239AA is an essential provision of the Indian Constitution
as it outlines the unique governance structure of Delhi. It reflects a balance
between local authority and national interest in a city that serves as the capital
of India. As Delhi continues to evolve and grow, the proper implementation and
interpretation of this article will remain a subject of ongoing discussion and
legal scrutiny. Over the years, Article 239AA has been a subject of contention
and legal disputes. The interpretation of the roles and powers of the Lieutenant
Governor and the elected government has been debated. The disagreements
between the Lieutenant and the Chief Minister of Delhi have led to
administrative and political challenges, resulting in multiple legal battles and
interventions by the courts.
3
The Constitution of India
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Chapter-3
How Union Territories Administered in India

Articles 239 to 241 deal with the Union territories. The president appoints
administrators for the administration of the Union territories. An administrator
is a representative of the President and is not elected. In some Union territories
like Delhi and Puducherry, the Lieutenant Governor can make laws and
regulations for the Union Territory. In other Union territories, like Lakshadweep
& Dadar and Nagar Haveli, powers are limited to advising the elected
government. The administrator is different from the Governor, who is the head
of a state, but the administrator is the agent of the President. Article 239(2) of
the Indian Constitution states the designation of an administrator, which the
President decides, it could be Chief Commissioner or Lieutenant Governor or
Administrator. 4 It also gives power to the President to appoint the Governor as
an administrator of the Union Territory of any adjacent state.
The power to appoint an administrator is with the President, but the Parliament
decides the structure of the union territory. Legislative assembly or, council of
ministers, or both can be the structure of the union territory; at present, two
union territories have legislative assembly, namely Puducherry and Delhi. 69th
amendment of the Indian Constitution, which inserted Article 239AA, gives
authority to have a legislative assembly in Delhi. It also changed the name of
the union territory of Delhi to National Capital Territory(NCT), and Delhi will
have a Lieutenant Governor as an administrator, which the President will
appoint. NCT of Delhi has a council of ministers whose limit is not more than
10% of the total seats in the legislative assembly. According to Article 239AA
(4), if a conflict occurs between the chief minister of Delhi and the Lieutenant
Governor, the Lieutenant Governor will refer the case to the President. If an
urgent matter occurs or requires immediate action then the Lieutenant Governor
can give the directions as he deems fit. In such situations, Article 239AB gives
power to the President to suspend any or all provisions of Article 239AA of the
Indian Constitution. 5
The President has power under Article 240 of the Indian Constitution to make
regulations for peace, development, and good government of the Union
Territories except for Chandigarh and NCT of Delhi, and in Pondicherry, the
government must be dissolved first.
4
Scrutinising the Central Government’s Imperative Role in the Emergence and Administration of Union
Territories, Manupatra, 12 January, 2021
5
Special Status of Delhi, SCO
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Chapter – 4
Government of NCT v. Union of India (2019)

This landmark case before the Supreme Court of India was concerned with the
issue of the powers and functions of the elected Government of Delhi vis-à-vis
the Central Government. This controversy focuses on the interpretation of
Article 239AA of the Indian Constitution.
Issues considered by the Supreme Court in light of this case 6
1. Power of giving posting orders of the public services passed by the Delhi
government or Lieutenant Governor?
2. Can the Delhi government pass an executive order under the Delhi
Electricity Reforms Rules, 2001, and Delhi Electricity Reforms Act,
2011, without the Lieutenant Governor for his views/concurrence?
3. the Lieutenant Governor, acting under the jurisdiction of the Ministry of
Home Affairs, can direct ACB Police Station from not investigating or
pursuing cases against Central Government officials, if they are posted
outside Delhi?
4. Does the Lieutenant Governor have authority under section 24 of the
CrPC to appoint Public Prosecutors, or can the Delhi government appoint
Public Prosecutors and Special Public Prosecutors in particular Cases?
5. Can the Delhi government, without placing the matter to the Lieutenant
Governor, set up a Commission of Inquiry under the Commission of
Inquiry Act, 1952?
Judgment
Judgment is divided into two parts: ratio decidendi and obiter dicta
Ratio decidendi
1. In cases where a provision of a law passed by the Legislative Assembly
conflicts with a provision of a law passed by the Indian Parliament, the
law passed by Parliament will take precedence, and the law from the
Legislative Assembly will be repealed. This principle applies to matters
whether they were passed before or after the law from the Legislative
Assembly, as well as to earlier laws that the Legislative Assembly did not
pass. In essence, Parliament's laws hold supremacy in such conflicts.

6
Government of NCT v. Union of India (2019)
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2. The legislation made by the legislative assembly is waiting for the

President's approval, and if it gets approved, it will come into effect in the
National Capital Territory. However, this does not prevent the Indian
Parliament from enacting its legislation on the same matter at any time,
including bills that supplement, modify, alter, or repeal the laws
established by the Legislative Assembly. In other words, Parliament
retains the authority to legislate on the same issue, even after the
President assents to the Legislative Assembly's law.
Obiter dicta
"Constitutional morality" refers to the adherence to moral principles embedded
in constitutional standards and the conscience of the Constitution itself. Any
conduct seeking justification must align with constitutional principles. To
realize this constitutional vision, all individuals, especially high-ranking
officials, must uphold a spirit of constitutional morality that rejects the
concentration of power in the hands of a few. The three branches of government
must maintain the trust the Constitution places in them by remaining faithful to
its principles.
The decisions made by constitutional officials and the processes they follow
should be morally sound and under constitutional objectives and the spirit of the
Constitution. The Constitution envisions a form of government characterized by
fiduciary public authority and a system of checks and balances. This form of
constitutional governance fosters the constitutional trust that all officials must
demonstrate while fulfilling their official duties.
Observations of the Court
 The court said that the council of ministers binds the Lieutenant
Governor's aid and advice, land, police, and public order.
 NCT of Delhi can not be given the status of state because of the structure
of the Indian constitution. Absolutism and anarchy are not allowed by the
Constitution of India. By providing the National Capital Territory of
Delhi with the necessary autonomy, the principles of pragmatic
federalism and maintaining a federal balance are upheld, all within the
boundaries set by the Constitution. According to Chief Justice Dipak
Misra, the relationship between the Council of Ministers and the
Lieutenant Governor should reflect a constructive ideology rooted in
wisdom and prudence.7

7
Delhi vs Centre: Powers demarcated; Split verdict on power to transfer and appoint officers [Full Report], SSC
BLOG
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 Justice Bhushan's view on interpreting constitutional provisions should be

context-dependent, considering the current needs and circumstances. He
emphasizes that the Lieutenant Governor's powers under Article 239 AA
should be used for matters of constitutional relevance. The Bench also
concluded that the Lieutenant Governor should not mechanically refer
every decision of the Council of Ministers to the President without due
consideration. In his lengthy 123-page verdict, Justice Ashok Bhushan
emphasized the importance of respecting the choices and opinions of the
elected representatives in the Delhi Legislative Assembly. 8
 Justice D.Y. Chandrachud's perspective is that the Lieutenant Governor
(LG) should recognize that the Council of Ministers, which offers
assistance and advice, is elected to represent and serve the people,
embodying the responsibilities and aspirations of democracy. In a
disagreement between the Council of Ministers and the Lieutenant
Governor it should be resolved through dialogue and discussion. He also
referred to the Balakrishnan Committee report in his argument.
 It's important to note that the phrase "with respect to any of the topics
mentioned in List II of the Seventh Schedule," as found in Article 246(3)
of the Indian Constitution, confers exclusive legislative authority to a
State or any part thereof. However, the phrase "in so far as any such
matter is relevant to Union Territories" in Article 239AA(3)(a) carries a
distinct meaning. It signifies a differentiation between the legislative
powers of States and those of Union Territories, as indicated by using
these specific phrases. The Parliament, during the inclusion of Article
239AA into the Constitution, had a full understanding of the functioning
of Union Territories and the extent and control of powers to be granted to
them through constitutional amendments.
 The Delhi government does not have jurisdiction over Entry 41 of List II
in the Seventh Schedule of the Constitution. Therefore, there is no need
for the Delhi government to exercise any executive powers in relation to
"services." The executive power of the Delhi government, as outlined in
Article 239AA(4), only extends to matters over which the Legislative
Assembly has the authority to make laws. Regarding "services," the Delhi
government can only utilize executive powers that are granted to it by any
statute enacted by Parliament or those executive powers that have been
assigned to it.9

8
Govt. of NCT of Delhi vs Union of India
9
Government of NCT Delhi v. Union of India (2019) case study
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Chapter – 5
The Government of NCT of Delhi (Amendment) Bill, 2023

The Government of National Capital Territory of Delhi (Amendment) Bill

2023 was introduced and passed in August 2023 after the Supreme Court
judgment on 11 May 2023. The Supreme Court held that the Delhi
government has the power over all administrative services, police, land, and
public order, and the Lieutenant Governor of Delhi is bound by the decisions
taken by the Delhi assembly.10
New changes in the bill
 The National Capital Civil Services Authority is established under this
bill, consisting of the Principal Home Secretary of Delhi, Chief
Secretary, and Chief Minister, which will suggest the Lieutenant
Governor relating to disciplinary matters and transfers and posting of
officials.
 This bill gives great powers to the Lieutenant Governor on many
matters, including those suggested by the National Capital Civil
Services Authority and related to the Delhi Legislative Assembly, like
summoning, prorogation, and dissolution.
 Also gives authority to the department's secretaries to notify the
Lieutenant Governor, Chief Minister, and the Chief Secretary of any
possibility that results in a controversy between the Delhi government
and the Central government.
Issues and Analysis
 Power given to the Lieutenant Governor for transfer and posting of the
officers may result in breaking the triple chain that connects the civil
services, ministers, the legislature, and citizens. It may contradict the
parliamentary principles of democracy, i.e., basic structure doctrine.
 The Chief Minister will not be able to convene a session for the essential
government business because of the sole discretion in some matters to the
Lieutenant Governor of Delhi.
 The matters that can result in controversy between the Delhi government
and the Central Government are directly reported by the department’s
secretary to the Lieutenant Governor, Chief Minister, and Chief Secretary

10
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023, PRS Legislative Research
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of Delhi. This can go against the collective responsibility of the cabinet as

the related minister would not be able to provide his input.
Bill violating the Indian Constitution
The Bill establishes an Authority to make recommendations to the Lieutenant
Governor on specific matters, including transfers and postings, vigilance-related
issues, and disciplinary proceedings of officers in Delhi. This Authority
comprises three members: the Chief Secretary and Principal Home Secretary
appointed by the Central Government. As a result, these two members could
outvote the Chief Minister of Delhi. Moreover, the Bill gives power to the
Lieutenant Governor to supersede the recommendations of the Authority.
Consequently, the Bill effectively bestows the Central Government with
significant powers over the administration of services in Delhi. In a scenario
where the Delhi government lacks control over civil servants, it becomes
challenging to implement programs in various sectors within its jurisdiction
effectively. This situation could potentially contravene the principle of the triple
chain of accountability, which constitutes a fundamental aspect of parliamentary
democracy. 11
The recent 2023 judgment by the Supreme Court emphasizes the concept of a
triple chain of accountability, where civil servants are accountable to ministers,
ministers are accountable to legislatures, and legislatures are accountable to the
electorate. In a democratic government, elected officials should have the ability
to control and hold public officers accountable. By breaking the first link in this
chain of accountability, the Bill can be seen as contradicting with the
fundamental principles of parliamentary democracy. The 2023 judgment
reinforces the principle established in the 2018 judgment that ministers are
responsible before the legislature for the actions of public officials in their
respective departments. However, under the Bill, a Delhi minister may not be
able to hold public officials accountable for bureaucratic delays. 12

11
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023, PRS Legislative Research
12
Government of NCT Delhi (Amendment) Act, 2023, Aiman J. Chishti
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Conclusion

The Government of National Capital Territory of Delhi (Amendment) Bill 2023

is likely to give rise to additional legal challenges, as we have discussed above.
This will be a long war between the central government and the government of
Delhi. The recent Supreme Court decision on placing excessive reliance on the
constitutional officers responsible for Delhi’s administration started the dispute,
and it will go on and on. The decision primarily deals with constitutional
principles and doesn't provide specifics on its practical implementation, which
could potentially result in further legal disputes. Consequently, while the
decision has been rendered, significant tensions between the Delhi
administration and the Lieutenant Governor persist, which resulted in the
amendment bill that was introduced and passed in August 2023 after the
Supreme Court decision.