Introduction

This case is decided by the supreme court of India, in 2023. The national capital territory of Delhi is a city and union territory which has received a status of partial statehood and has an elected legislative assembly and an executive council of ministers. However this partial status has led to the tussle of power between the government of ruling Aam Aadmi party and the lieutenant governor acting on behalf of the union government. The core focus is on who will have control over the service, and this issue has led to the interpretation of federal relation between state and the central government and how constitutional provision article 239AA of the constitution is the central theme of the conflict impacting the relationship of NCT Delhi and union government. This case is a significant milestone in the constitutional jurisprudence of India where attempt was made to harmonize the unique administrative setup of Delhi with the broader principles of democracy and federalism.

Facts of the case

The case revolves around the ongoing conflict between the Delhi government and the Union government regarding the distribution of powers and the role of the Lieutenant Governor (LG) in the administration of the National Capital Territory of Delhi. Tussle of power between NCT Delhi and union government came in to the light when the bill named the government of national capital territory of Delhi amendment bill 2023 was passed which empower the lieutenant governor regarding matters related to the transfers and posting of officials and disciplinary. This bill gives immense power to the LG to exercise his sole discretion on matters related to civil service, summoning, prorogation and dissolution of the legislative assembly of Delhi. Conflict Over power sharing between NCT Delhi and union government has been raised before the supreme court on several occasions.

Issue raised in this case

Issue which was raised in this case was which has the authority between the central and NCT of Delhi to control the services,. Another issue led to the interpretation of constitutional provision of Article 239AA where it was argued whether this provision gives power to Delhi government or reserve power to central government over services. Scope and power of the lieutenant governor was also matter of discussion here.

Contention

Dr. A M Singhvi, learned Senior Counsel appearing for the appellant, made an argument where he emphasized the importance of the exclusive executive authority, where the elected government should have the authority to make decisions on all other matters without requiring the concurrence of the Lieutenant Governor. He further argued that the Legislative Assembly of NCTD had the power to enact laws. Where he mentioned that under Entry 41 of List II of the Seventh Schedule, even though it doesn't specifically mention "Union Territory public services. “Delhi government can exercise its powers. Singhvi stated that even if the NCTD legislature hasn't used this power, it doesn't mean it doesn't exist. Additionally Under list II Delhi government has power including legislative and executive over all the entries except those which are excluded by article 239AA.  

Mr. Tushar Mehta, the Solicitor General, argued on behalf of the Union of India that Union Territories like NCTD  do not have state public service commission hence they cannot access the use Entry 41 of List II. He said since Delhi has a special status of national capital because of that status it requires the Union to have control over services to fulfil their national and international responsibilities. As a representative of union government, it was argued that lieutenant governor should have supervisory role in it. The arguments made by both the parties indicate the need to decide the limited question of whether NCTD has the power to legislate under Entry 41 of the State List, and whether Article 239AA(3)(a) applicable to the union territory in terms of term “in so far as any such matter is applicable to Union Territories.”    

Rationale

A Constitution Bench consisting Chief Justice DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha gave their verdict in this case where it was held that government of Delhi has executive and legislative power over the services however there are certain exception where matters related to land, police and public order is out of the purview of Delhi government. Court further said that lieutenant governor shall be bound by the decisions of Delhi government.

The rationale behind the Supreme Court’s decision in Government of NCT of Delhi v. Union of India (2023) is rooted in a careful interpretation of constitutional provisions, principles of democratic governance, and the unique status of the National Capital Territory of Delhi.

Federalism is considered as part of the basic structure as it was held in the S R Bommai case , it was held that states are independent and supreme in their allotted territory, even if the Constitution has a centralising drift. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre, does not mean that States have less power then Centre. Within the allotted territory to them, States are supreme. The Centre cannot tamper with their powers. It was viewed that the courts should not adopt an approach, where an interpretation, has the effect of whittling down the powers reserved to the States.”

Expectations from our model of federalism is cooperation among state and union government, and to fulfill this requirement it is expected from both level of government to fulfill the spirit of cooperative federalism by iron out their differences that arise in the practice of governance and collaborate with each other. The Union and Delhi government need to cooperate in a similar manner to the Union and the States. This cooperation is very crucial to sustain the democracy as it was shown it the decision of 2018 judgements. In Decision of 2018 judgement it has highlighted the need of enhancement of the spirit of federalism and democracy together.

Despite not being a complete state, NCTD's Legislative Assembly has been empowered by the constitution of India to enact laws on the topics included in the State List and Concurrent List. The NCTD was granted limited legislative authority under the Article 239AA(3) constitutional system, which is comparable to state legislation in many respects.

Similar to the other States, NCTD also represents the representative form of government.  And it is important to note that involvement of the Union of India in the matters of administration of NCTD is limited by constitutional provisions, and any further expansion or interference would be contrary to the constitutional scheme of governance, And encroachment by union government.

Article 239AA and its defect

Article 239AA of the Indian Constitution, which grants special status to the National Capital Territory (NCT) of Delhi, contains several ambiguities and defects that have led to disputes between the Delhi government and the Union government. These defects primarily revolve around the distribution of powers and the role of the Lieutenant Governor (LG) vis-à-vis the elected government of Delhi, there are certain flaws that consists ambiguity in executive powers, dispute regarding control over services, no clear distinction between legislative power and Executive Authority.

Inference

The supreme court in its judgement while emphasising the importance of federalism and held that Constitution must be interpreted in a manner that promotes democracy, the rule of law, and effective governance. By outlining the powers of the elected government and the LG, the Court ensured that the Constitution's provisions are applied to facilitate a balanced and functional governance model in Delhi.

 In a democratic government, it is essential for the elected arm of the state to have control over administration within its jurisdiction. Without this control, the principle of collective responsibility is compromised, as the government must be able to hold officers accountable and effectively govern. The supreme court explained how democratic government is rests on triple chain of accountability. And this bill may be contradicting of parliamentary democracy. Giving sole power to the lieutenant governor to act on his decreation in matter related to the executive maybe contradictory to the decision given in 2018 where it was held that decision making power lies with the elected government. From the judgement of supreme court in this it can be inferred that this bill was against the parliamentary democracy and federal structure of India.

Conclusion

It can be concluded that this case marks the significant moment in the ongoing tussle between the government of NCT Delhi and union of India. This case highlights Union Territories do not have homogeneous governance structures. And due to unique status of NCT Delhi, it is entitled to have access of power in all entries mentioned in List II expect matter related to Land, public order and Police. However steps taken by the union government of India just after 1 week of this decision where government promulgated the new ordinance 2023, which nullified the effect of this decision draws a different picture of nature of federalism in India.

Reference

1. SCC Online. (2023, May 13). Supreme Court judgment settling tussle between Delhi govt and Centre. https://www.scconline.com/blog/post/2023/05/13/explained-supreme-court-judgment-settling-tussle-between-delhi-govt-and-centre-legal-news/

2. Indian Kanoon. (n.d.). NCT of Delhi v. Union of India. https://indiankanoon.org/doc/196253171/

3. SC Observer. (n.d.). NCT Delhi v. Union of India: The lieutenant governor and the NCT Delhi case background. https://www.scobserver.in/cases/nct-delhi-union-of-india-the-lieutenant-governor-and-the-nct-delhi-case-background/

AUTHOR:

Pooja

Campus law Centre, Faculty of Law, Delhi University