Discussion on "Visva Bharati, Dr Syama Prasad Mookerjee & Bengal's Intellectual Legacy" on 16th December 2018, Sunday at 5 PM, Lipika Auditorium, Visva Bharati, Santiniketan, West Bengal.

Judgment of NCT of Delhi Vs. Union of India: Upholding the Constitutional Powers of the Lieutenant Governor

Shivam Singhania

A Constitution Bench of the Supreme Court of India on 4th July, 2018 answered a reference in Govt. of NCT Delhi v. Union of India, signifying the unique nature of the National Capital Territory of Delhi as a Union Territory with an elected regional government but under the administration of the President of India through the Lieutenant Governor.

In India’s federal structure, the Parliament has the exclusive powers to make laws on matters enumerated in the Union List of Schedule VII of the Constitution and the State Legislative Assemblies have exclusive powers to make laws on matters enumerated in the State List of Schedule VII of the Constitution. Both the Parliament and the Assemblies can make laws on entries in the Concurrent List, subject to the condition that in the event of conflict of Union and State Laws the law enacted by the Parliament will prevail. Therefore, states are a distinguishable, recognized entity in the governance structure with considerable powers to reflect the will of the people of any particular state. As a corollary, the Union and state governments have fairly demarcated spheres of power and sufficient degree of autonomy in framing and executing welfare policies, distinct and independent of one another.

A third category of governance structure are Union Territories which are directly governed by the Union Executive through Administrators. The entire territory of India is divided into states which means any piece of land will fall within the boundary of at least one state and therefore on it can be exercised the executive powers of that state government. However, Union Territories even though may fall within the territory of a state is governed directly by the union government, for example Chandigarh.

What if a Union Territory has its own government? Whether the Union government continues to hold power, and if so to what extent? What is the scope of the government of the Union Territory, is it similar to a state government? Does the administrator become akin to the Governor of a state or he has a more direct role to play compared to a Governor? Will the territory be run by a hybrid system of both the central and its own government and what would such hybrid structure be? These are questions of governance and constitutional conflict.

Article 239AA of the Constitution governs the structure of legislature and executive in NCT Delhi. It provides for a legislature for Delhi directly elected by the people of Delhi and a Council of Ministers from such legislative assembly.
According to Article 239AA (3)(a), the legislative power of the NCT assembly extends to all matters in the state list except three matters (public order, police and land). According to Article 329(4) the executive powers of NCT government extends to all matters for which the NCT Assembly has power to make laws. Interestingly, the Parliament has the power to make laws for the Union Territory of NCT Delhi on matters on Union, State as well as Concurrent List. Therefore, for Delhi the Parliament can make laws for matters in the Union List, and on Land, Public Order and Police while both the NCT Assembly and the Parliament can make laws for other matters in the State List and Concurrent List and in case of conflict the law enacted by Parliament shall prevail.

This presents the unique state of NCT Delhi, conclusively proving that it is a Union Territory and does not have the features of a federal state as all its laws can be repugnant to Parliamentary laws and the NCT government is duty bound to follow and implement such Parliamentary laws which override the laws made by the NCT assembly itself.
Even though legislative powers overlap, the Supreme Court found that the executive powers vest only in the NCT government. It opined that the principles of representative government and collective ministerial responsibility are fundamental to a democratic setup, which being enshrined as a basic tenet of our Constitution cannot be done away with in favour of a completely centrally administered system when the Parliament in its constituent power by the Sixty-Ninth Amendment had decided to provide for the people of Delhi a representative government. This understanding is embodied by Article 239AA(2)(a) which says that the NCT of Delhi ‘shall’ have a legislative assembly. Therefore, when the Constitution has made it mandatory for Delhi to have an elected assembly and a council of ministers from its members, the aspirations of the people reflected in a democratically elected government which is collectively responsible to an elected assemblyembodies our rich democratic principles and should be at the forefront of constitutional interpretation.

That governance has been smooth over six assemblies spanning twenty five years manifests the Centre’s deference and non-interference within the executive sphere of the Delhi government. In fact, the deliberations over federal balance in the judgment is an expression and approval of the collaborative and co-operative federalism envisaged by our Prime Minister to fulfil the aspirations of the people. Rather, if one understands the Court’s interpretation of the Constitutional position of Lieutenant Governor, it will be clear that disputes have been a result of the Delhi government’s failure to appreciate the Lieutenant Governor’s powers and constitutional duties and the unique structure of Delhi as completely distinct from a State.

That being said, the Court vehemently reiterated the position in the NDMC case that the NCT of Delhi still in sum and substance remains a Union Territory and the Lieutenant Governor has more powers that the President as head of Union or the Governor of a State. This is because even though the Lieutenant Governor, like the President or the Governor is bound by the ‘aid and advice’ of the Council of Ministers proviso to Article 239AA(4) gives the power to the Lieutenant Governor that in case of any difference between him and the Council of Ministers, he shall refer the same to the President and the President’s decision shall be binding of the Delhi Government.

In substance, the will of the representative government can be overridden by the decision of the President (who acts by aid and advice of the Union) if the Lieutenant Governor has differences with the Delhi government on such issue. This unique power was vested keeping in mind that the Union has considerable stake in functioning of a National Capital.
The question that arises is whether the power of Lieutenant Governor to refer ‘any matter’ to the President in case of differences of opinion means ‘every matter’ can be referred or are there parameters on the basis of which matters would be referred?

The Court rejected the Delhi government’s argument that the Lieutenant Governor cannot have any say in its executive functioning and differences are only restricted to land, public order and police where the Parliament can make laws.
The Court held that the Lieutenant Governor is required to act with constitutional objectivity keeping in mind the high degree of constitutional trust reposed on him while exercising powers not even provided to the Governor or President. The power should be exercised with reasons for difference, guided by the interests and welfare of the people of Delhi.
In a concurring judgment, highlighting the vital interest of the Union in the governance of the national capital and for interests of permanence and stability, the Court held that the powers of the Delhi government are constitutionally restricted.

In the same concurring opinion, it was held that to balance powers granted to Lieutenant Governor to refer matters to the President and the governance by the Delhi government, not every matter but those matters which have an aspect of national concern should guide the operation of the proviso such as when an executive act of the government of Delhi impedes or prejudices the exercise of executive power of the Union, or to ensure compliance with a Parliamentary law or when the executive of Delhi acts in an area where it does not have legislative competence. However, the Court clarified that no exhaustive enumeration of circumstances to invoke the proviso is possible and the Lieutenant Governor should be guided by the broad principles as held by the Court.

The Constitution Bench in this reference has answered the constitutional ambiguities over spheres of power of the executive and the administrator. The matter will be referred to an appropriate bench to answer the specific disputes which led to the abovediscussed constitutional questions.

The principles as laid down sufficiently encompasses the acts of the Union which have been disputed by the Delhi government. Firstly, the question of control of Delhi Anti-Corruption Bureau is now unambiguously settled. The subject of ‘police’ and ‘public order’ is reserved for the Parliament to legislate on, and by deduction if the Delhi assembly cannot legislate, the executive also cannot have powers in relation to police and public order. Police and public order encompass powers of investigation as provided by the Criminal Procedure Code, and any Anti-Corruption Bureau is only a special investigative agency with powers which are otherwise vested with the police. Therefore, like the Delhi Police the control legislatively rests with the Parliament and operationally with the Ministry of Home Affairs, Government of India.

The second dispute was in relation to transfer of officials in the Delhi government, broadly classified as control over ‘services’ for the NCT of Delhi. While ‘services’ is part of the state list and is not reserved for the Union, thereby falling under the ambit of the legislature and executive of Delhi, the answer is not so simple if the spirit of the principles laid down in this judgment is to be kept intact.

Delhi does not have state services and for the All India Services it does not have a specific Delhi cadre but falls in the Union Territory Cadre along with other Union Territories. Therefore, applying the principles, the Lieutenant Governor is constitutionally justified in referring the dispute to the President because it fits within both the understanding of constitutional objectivity and having a connotation of national or Union concern.

Whether constitutionally it is permissible for the government of a Union Territory to transfer official of UT cadre when in other Union Territories it is the power vested in the Union is a question substantive and constitutional objective enough to invoke reference to the President. To maintain uniformity in process of transfer, transfer of UT cadre officials invokes Union interests and also has the possibility of bringing at crossroads the disputed power of government of Union Territory to transfer and the power of the Union to control the UT cadre. Further, the constitutional question of whether Delhi government can control a officials belonging to cadre of all Union Territories can raise differences justifiable to be referred to the President.

In summary, the Constitution Bench’s answer to the reference upholds democratic principles within the sphere of the unique structure of the NCT of Delhi, strengthening through the constitutional trust reposed in the Lieutenant Governor and thereby upholding the legitimate interest of the Union in the governance of the NCT of Delhi.

(Writer is a 3rd year B.A.LL.B. student at West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.)

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