Delhi has been the flashpoint of innumerable power struggles but 2015 was a momentous year in the history of the metropolis. The country’s two main political parties failed miserably in an election to see who controls the National Capital Territory. The Aam Aadmi Party swept the election, winning 67 of the 70 seats. However, in the absence of statehood for Delhi, there has been a prolonged confrontation on the relative powers of the territorial administration and the Union government.
Dilemmas of dual governance
The status of Delhi being a Union Territory under Schedule 1 of the Constitution but christened the ‘National Capital Territory’ under Article 239AA, engrafted by the Constitution (Sixty-ninth Amendment) Act, 2014, put the dynamics of the relationship between the elected Council of Ministers in Delhi and the Central Government under severe strain. The Administrator of Delhi, renamed as the Lieutenant Governor (L-G) under the aforementioned amendment, crossed swords with the elected government on multiple issues, including control over agencies, namely the Anti-Corruption Bureau, the Civil Services and the Electricity Board. The issues pertaining to the power to appoint the Public Prosecutor in Delhi and to appoint a Commission of Enquiry under the Commissions of Enquiry Act, etc., were vexed legal questions necessitating interpretation of the Constitution.
Though the Delhi High Court decided in favour of the Central Government relying on the status of Delhi as a Union Territory, on appeal by the NCT, the Supreme Court referred the matter to a Constitution Bench to decide on the substantial questions of law pertaining to the powers of the elected government of Delhi vis-a-vis the L-G.
The five-judge Bench opened a new jurisprudential chapter in the Administration of NCT by invoking the rule of purposive construction to say that the objectives behind the Constitution (Sixty-ninth Amendment) Act shall guide the interpretation of Article 239AA and breathed the principles of federalism and democracy into Article 239AA, thereby finding a parliamentary intent to accord a sui generis status in distinction from other Union Territories.
The Court declared that the L-G is bound by the “aid and advice” of the Council of Ministers, noting that the Delhi Assembly also has the power to make laws over all subjects that figure in the Concurrent List, and all, except three excluded subjects, in the State List. The L-G ought to act on the “aid and advice” of the Council of Ministers, except when he refers a matter to the President for a final decision.
Regarding the L-G’s power to refer to the President any matter on which there is a difference of opinion between L-G and the Council of Ministers, the Supreme Court ruled that “any matter” cannot be construed to mean “every matter”, and such a reference shall arise only in exceptional circumstances. L-G shall act as a facilitator rather than anointing himself as an adversary to the elected Council of Ministers. At the same time, the Court ruled that the National Capital Territory of Delhi cannot be granted the status of a State under the constitutional scheme.
Split verdict on services
After the Constitution Bench laid down the law on the broad issues involved, the contested questions were listed before a two-judge Bench. The Court unanimously held that while the Anti-corruption Bureau belongs to the province of the Centre, the Electricity Board under Government of NCT is the Appropriate Authority under the Electricity Act of 2003. While it held that only Central Government has the power to constitute enquiry Commission under the 1952 Act, the power to appoint Public Prosecutor is vested with Government of NCT. While one Judge found that services were totally outside the purview of the Government of NCT, the other held that officers below the rank of joint secretary are under the control of the Government of NCT.
Back to the Constitution Bench?
This split has resulted in the present hearing before a three-Judge Bench presided over by the Chief Justice, in the course of which the Solicitor General sought reference to a Constitution Bench. This has been opposed by the Government of the NCT of Delhi, whose counsel argued that forming another Constitution Bench to decide the matter would amount to a “review” of the earlier Constitution Bench ruling. The 3-Judge Bench has reserved its orders on the question.
It is germane to remember the observation of Justice Ashok Bhushan penned as part of the Constitution Bench decision on NCT (2018) that, “From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.”
Unless the stakeholders recognise this axiomatic precept, Delhi would continue to be under administrative and political distress.
The 2021 amendment to the Government of National Capital Territory of Delhi Act,1991, is a pointer to the possibility that the tug-of-war will not end. The aforementioned amendment is also under challenge before the Supreme Court.
Abhilash M.R. is a lawyer practising in the Supreme Court