This article has been written by Miracline Paul Susi. Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

The 69th Constitutional Amendment Act passed in 1991 inserted Article 239AA which provides for a special status to Delhi. According to 239AA the Union Territory of Delhi is renamed the National Capital Territory (NCT) of Delhi. As per Article 239 of the Constitution, every Union territory is to be administered by the president acting through an administrator appointed by him. In the case of Delhi, by virtue of Article 239AA of the Constitution, the administrator appointed under Article 239 is designated as the Lieutenant Governor. This article also creates a legislature assembly for the National Capital Territory of Delhi unlike other union territories.

The legislative assembly is vested with the power to make laws for the whole or part of the National Capital Territory with respect to any of the matters enumerated in the state list or the concurrent list except matters with respect to the entries 1, 2 and 18 of the list[1]. But this does not derogate the parliament to make laws with respect to any matter for the Union Territory or any part thereof[2]. It can be seen that apart from the exception for the Legislative Assembly to make laws under entries 1, 2 and 18, the language used in Article 239AA (4), that pertains to Delhi, reads identical to Article 163 (1), that pertains to states.

From the above rationale it is understandable that status of Delhi is neither analogous with a Union territory nor a state as such. The NCT status allows Delhi to continue to be a Union territory provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man[3].The Supreme Court in NDMC v. State of Punjab[4] observed that Delhi is an evolving Union Territory with trappings of a State. This places Delhi in a peculiar position, raising several constitutional conundrums having little precedent.

One such recent issue is the scuffle for constitutional exercise of power over the appointment of chief secretary in Delhi. Art 239AA(4) of Indian Constitution says that the Chief Minister at the head has to aid and advise the Lieutenant  Governor  in the exercise of his functions in relation  to matters  with  respect to which the Legislative Assembly has power to make laws. On one side it can be argued that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers. By placing reliance upon U.N.R. Rao v. Indira Gandhi[5], S.R. Chaudhuri v. State of Punjab[6] and B.P. Singhal v. Union of India[7] it can be argued that Article 239AA a Cabinet form of Government has been put in place for Delhi wherein the Council of Ministers along with the Chief Minister are collectively responsible to the people of Delhi and consequently the Lt. Governor is bound by the aid and advise of the Council of Ministers headed by the Chief Minister. Also from Samsher Singh case[8], it can be said that the except in spheres where the Lieutenant Governor is required by or under the Constitution to exercise his functions in his discretion he must act in accordance with the aid and advice of the council of ministers. The discretion with respect to lieutenant governor arises only with matters contained in Proviso to Art.239 AA (4) of Indian Constitution. But the Delhi High Court made a different observation recently and held that Delhi continues to be a Union Territory, and that the Lt. Governor of Delhi is not bound to act only on the “aid and advice” of the Delhi Legislative Assembly.

The court has also held that,

“It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993[9]”.

A defining feature of a federal democracy is division of power. It is this principle that makes the exercise of power a remit of the elected head and not the nominal heads (president, governors/LGs). Nominal heads have varying degrees of discretionary power (more in quasi states, less in full states), but those are to be exercised with restraint and with an understanding of how the wheels of legislative democracy turn[10]. Therefore it is necessary for this situation to be looked upon and an effective amendment to this provision has to be brought for the proper balance of the centre and State in NCT of Delhi.

[1] Art. 239AA(3)(a), 239AA(4) of Indian Constitution

[2] Art. 239AA(3)(b) of Indian Constitution

[3] The Constitution (Sixty-Ninth Amendment) Act, 1991: Statement of Objects and Reasons.

[4] (1997) 7 SCC 339

[5] (1971) 2 SCC 63

[6] (2001) 7 SCC 126

[7] (2010) 6 SCC 331,

[8] (1974) 2 SCC 831

[9] Bar and Bench, The New face of Journalism in India, Delhi High Court reject’s AAP claims versus Lt. Governor, August 2016 viewed at http://barandbench.com/delhi-high-court-rejects-aap-claim-versus-lt-governor/

[10] Rajshree Chandra, The ‘Jung’ Between Modi and Kejriwal and the Travails of a Quasi State, August 2016.

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