Lalit Shastri

The Supreme Court order on Thursday 11 May 2023 gave its verdict in a case dealing with the ‘asymmetric federal model of governance in India’, involving the contest of power between the Union Territory of Delhi and the Union Government and more specifically the issue who would have control over the “services” in the National Capital Territory of Delhi – the Government of NCTD – or the Lieutenant Governor acting on behalf of the Union Government.

The question arose subsequent to a notification issued by the Union Ministry of Home Affairs on 21 May 2015.

The notification stated as follows “… in accordance with the provisions contained in Article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that –

“…subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President.”

“Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.”

The above notification was assailed through a batch of petitions before the High Court of Delhi. The validity of the notification was upheld by the High Court as it declared that “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi.

On appeal, a two-Judge Bench of the Supreme Court was of the opinion that the matter involved a substantial question of law about the interpretation of Article 239AA, which deals with “Special provisions with respect to Delhi”, and hence referred the issue of interpretation of Article 239AA to a Constitution Bench on 15 February 2017.

The Constitution Bench pronounced its judgment on 4 July 2018. The judgment contained three judicial opinions. The opinion of the majority was authored by Chief Justice Dipak Misra, in which Justice A.K. Sikri, and Justice A.M. Khanwilkar joined. Justice Dr. D.Y. Chandrachud (now the Chief Justice of India) who was part of this Bench, along with Justice Ashok Bhushan, delivered separate concurring opinions. The Constitution Bench dealt with the constitutional status of NCTD and the modalities of its administration based on the division of powers, functions and responsibilities of the elected government of NCTD and the Lieutenant Governor, who as the nominee of the President of India, serves as the representative of the Union Government.

Once the quetion of interpretation of Article 239AA had been addressed, the appeals were directed to be listed before a regular Bench to decide the specific issues.

On 14 February 2019, a two-Judge Bench of Justice A.K. Sikri and Justice Ashok Bhushan delivered two separate judgments. The judges differed on whether “services” are excluded in view of Article 239AA(3)(a) from the legislative and executive domain of the Government of the National Capital Territory of Delhi (GNCTD).

The matter came for consideration before a Bench of three Judges. At this stage, the Union argued that the 2018 Constitution Bench did not analyze two crucial phrases in Article 239AA(3)(a): (i) “in so far as any such matter is applicable to Union Territories”; and (ii) “Subject to the provisions of this Constitution”.

By an order on 6 May 2022, the three-judge Bench observed that:

“From the reference application moved by the Union of India, as well as the rival contentions of the parties, the main bone of contention relates to the interpretation of the phrases: “in so far as any such matter is applicable to Union Territories” and “Subject to the provisions of this Constitution” as contained in Article 239AA(3)(a) of the Constitution.”

“On perusing the Constitution Bench judgment, it appears that all the issues except the one pending consideration before this bench, have been elaborately dealt with. Therefore, we do not deem it necessary to revisit the issues that already stand settled by the previous
Constitution Bench.”

In this backdrop the Supreme Court referred the limited question, for an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution.”

The Supreme Court order of 11 May by the Constitution Bench, presided by Chief Justice of India Justice Dr Dhananjaya Y Chandrachud and comprising of Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha, says: NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD is accorded a “sui generis” (unique or special) status, setting it apart from other Union Territories.

A closer look would amply explain that Article 239AA has been selectively picked relying on the earlier 6 May 2022 order to align and lend weight to the final order. To drive home this point, one would like to point to the primacy of the office of the LT Governor of Delhi.

239AA (4) Provides that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

Also, there is Article 239AB. It provides: If the President, on receipt of a report from
the Lieutenant Governor or otherwise, is satisfied—

(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.

In terms of power, one could equate the Union Territory of Delhi with other States to “this extent or that extent” but they cannot be defined as one and the same. For a proper understanding what needs to be asserted is that Article 239AA which came into force from the commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, does provide special provisions with respect to Delhi but this amendment does not put NCTD at par with other States.

The Supreme Court in its determination to equate NCTD with other States when it comes to legislative and executive power over “Services”, talks of Entry 41 of List II of the Seventh Schedule, which applies to “State Public Services and State Public Service Commission” on the basis of the definition of “State” under Section 3(58) of the General Clauses Act of 1897, which applies to the term “State” in Part XIV of the Constitution. Stretching this further, the apex court order asserts that “Part XIV is applicable to Union territories”

A whatsapp post, following the Supreme Court judgement, floating freely on social media says a lot. We are reproducing the post below:

I would like to be educated by my IAS and IPS friends on the following:

Arvind Kejriwal now controls bureaucracy, thanks to the Supreme Court. Arguably, he is now India’s most powerful man but not accountable to anyone. Is Kejriwals’s permission now a must for being transferred to Goa, Jammu and Kashmir, Andaman and Arunachal Pradesh?

Can a Chief Minister, that too of a municipal state (not a State) control UT Cadre officers for the whole country?