The 69th amendment to the Constitution of India, which added Article 239AA, marked a significant moment in the governance of New Delhi. This amendment declared that the Union Territory of Delhi would be administered by a Lieutenant Governor (L-G), who operates based on the advice of the elected legislative assembly. However, the ‘aid and advice’ clause applies only to matters where the elected Assembly has powers under the State and Concurrent Lists, excluding public order, police, and land.
This dual control between the L-G and the elected government can often lead to power struggles. To manage this, Article 239AA stipulates that the L-G must act on the advice of the Council of Ministers or implement decisions made by the President when referred to him. The L-G also holds the power to refer a difference of opinion on ‘any matter’ with the Council of Ministers to the President.
The Conflict Over Control in New Delhi
Due to the unique status of Delhi, there have been ongoing disputes over the relative powers of the elected government of New Delhi and the L-G, appointed by the Union Government. These conflicts have arisen over control of various agencies, such as the Anti-Corruption Bureau, the Civil Services, and the Electricity Board. The dispute is further intensified by the 2021 amendment to the Government of National Capital Territory of Delhi Act,1991, which indicates that the potential for conflict remains.
Judiciary’s Opinion on the Power Tussle
The legal perspective on this matter has shifted between different judicial bodies. Originally, the Delhi High Court ruled in favor of the Central Government, focusing on the status of Delhi as a Union Territory. However, the Supreme Court passed the matter to a Constitution Bench to resolve the substantial questions of law concerning the powers of the elected government of Delhi and the L-G. This case, known as the NCT vs UOI case, 2018, marked a new chapter in the administration of NCT jurisprudence.
Pivotal Court Rulings
Key rulings from the constitutional bench include its use of purposive construction to guide the interpretation of Article 239AA. This approach incorporates principles of federalism and democracy into the Article, indicating parliamentary intent to grant Delhi a sui generis status compared to other Union Territories. The court also underlined that the L-G is bound by the ‘aid and advice’ of the Council of Ministers, with few exceptions. Regarding the L-G’s ability to refer matters to the President, the court clarified that ‘any matter’ does not mean ‘every matter’, and such references should only occur in exceptional circumstances.
The Role of the Lieutenant Governor
The Supreme Court further defined the L-G’s role as a facilitator rather than an adversary to the elected Council of Ministers. However, it also stated that the National Capital Territory of Delhi cannot be given the status of a State within the constitutional framework.
Way Forward: Working Through Constitutional Trust and Principle of Subsidiarity
In resolving these governance challenges, the apex court determined that the Constitution and the Government of National Capital Territory of Delhi Act, 1991 promote a collaborative structure that can only function through constitutional trust. In addition, the central government must ensure the principle of subsidiarity, a key tenet of fiscal federalism that supports empowerment of sub-national governments. Drawing inspiration from strong sub-national governments in global megacities like Jakarta, Seoul, London, and Paris, India should consider allocating greater powers to city governments.
