The Quasi-Federal Hinge in Indian Constitution: Article 239AA

Introduction

The principles of federalism, participatory democracy, and collective responsibility were heralded by the Supreme Court of India while maintaining the position that the administration of the National Capital Territory (NCT) lies with the elected government, and not with the government at the Center. The article in question was Article 239AA. It has special provisions with respect to Delhi.

It was introduced into the Constitution of India, 1950 by way of 69th Constitutional Amendment Act, 1991. The said amendment provided for the appointment of an administrator to be called as the Lieutenant Governor. The said article also provided for the interpretation that wherever “appropriate legislature” in any part of Indian Constitution is to be understood with respect to Delhi, it shall be referring to the Parliament and not to the Legislative Assembly of Delhi.

The number of seats of Legislative Assembly shall be decided by the Parliament of India and any reservation of seats with respect to Scheduled Caste and Scheduled Tribe shall also be decided by the Parliament of India.

The Extent of Legislative Powers of Delhi

Article 239AA provides legislative power to the legislature of Delhi to frame laws on any matter contained in the State List and subjects related to Union Territories. However, the said provision also has provided for the overriding powers of the laws made by the Parliament.

Any law made by the legislative assembly of Delhi shall be considered to be repugnant if it is in contradiction with any of the laws made by the Parliament.

Police, Public Order and Land were explicitly kept out of the scope of Delhi's legislative assembly.

Report of Balakrishnan Committee

The Balakrishnan Committee in 1987 submitted its report which led to the enactment of 69th Amendment Act in 1991 that granted NCT a special status, allowing the Union Territory to have its own Legislative Assembly.

The Current Controversy

The issue revolves around powers with respect to transfer or post officers in the services of Delhi. At various instances this controversy has erupted leading to confusing connotations ascribed to- Center over States, and recently it has raised further deep end questions that remain subdued in the minds of the constitutional thinkers - what if Parliament overrides the decision given by the SC of India? The tussle between Independence of Judiciary and Sovereignty of Parliament lies at the heart of it. However, the President of India has promulgated an Ordinance in May 2023, which grants Center the power to transfer and appoint bureaucrats posted to Delhi.

The Nullifying Effect on Supreme Court’s Judgment

The Ordinance has a nullifying effect on the CJI DY Chandrachud’s opinion that the powers over the administration of Delhi should vest within the elected government. In two separate judgments earlier, one in July 2018 and the other one in May 2023, two constitution benches have dealt with the issue of these powers. In the 2018 verdict in the case of Government of NCT of Delhi v. Union of India, the majority ruling put forth that though by virtue of Article 239AA, Delhi could not be accorded and equated to other ‘states’ however the concept of federalism must be respected. The Union Territory of Delhi had been accorded a ‘representative form of government’, with LG being advised by the Council of Ministers. The Council of Ministers can be the utmost 10% of the total strength of the House. Total strength of the house can also be increased or decreased but only by Parliament.

Council of Ministers of Delhi to Aid and Advice the LG

There are certain exceptional circumstances that allow the LG of Delhi to send a matter for President’s consideration, and only in those cases, the advice of Council of Ministers was not binding on LG.

SC had time and again reiterated the constitutional position that the Center had exclusive powers over land, police and public order. All such other matters including services and administration has to be done by the elected house, or else it will be futile to give Delhi its representative democracy character. The SC has stated that in case of any disagreement over the opinion of Council of Ministers and LG, LG may refer the matter to the President. However, such disagreement must have a sound rational basis. LG has no discretionary or unlimited power over the administration of NCT. He has to act by the aid and advice only. Any changes made by the Parliament or any legislative body on this position will imply contradictory meanings to the very purpose of 69th Amendment Act 1991.

Conclusion

The SC of India has mentioned in its constitution bench verdict that the executive powers of the government of Delhi is coextensive to the legislative powers of Delhi and any abridgment of such powers, either by the Parliament or by the President shall be against the scheme of the Constitution. However, the President of India had considered the matter to be expedient that the ‘services’ as a subject has to be accorded to the Center and not to the Government of Delhi which has created problems for the Arvind Kejriwal administration. The CM of Delhi has recently accused the ‘bureaucrats’ that they are using the Ordinance as a tool to waive propaganda of dissent in the minds of the public.

Every political activity has to be tested with the litmus of Constitution and any such trudging over the constitutionally guaranteed mechanisms must be seen with the lens of Constitution. But at the outset of it, the sword keeps on hanging over the thin wire that connects the inter relationship between the two organs of the Government viz a viz SC and Parliament. Parliament has the President as its part with limited law making powers. But, in the Monsoon Session of Indian Parliament, the Delhi Services Bill, 2023 got its approval from the Rajya Sabha with parties like BJD and YSCRP joining the league of BJP. It is only a matter of time that the Bill shall receive approval of the President.

While there may be other instances where the Act shall again be challenged before the SC. While the tussle between the SC and the Parliament may continue, what lies as a high hanging fruit is the public interest which gets subdued, especially the residents of Delhi who have given their mandate to the Government of Delhi. Any iron hand holding of that mandate demands strict constrictures.

Harsh Vardhan Tripathi

Harsh Vardhan Tripathi has pursued his Masters in Criminal Law and is based in Lucknow, Uttar Pradesh. He is a passionate teacher by day and a researcher by the night. He has a teaching experience of over 5 years and is popularly known as the Wizard of Current Affairs among his students.