The Delhi dual governance conundrum 

Context: Delhi has been experiencing a prolonged confrontation on the relative powers of the territorial administration and the Union government. However, recently, the 2021 amendment to the Government of National Capital Territory of Delhi Act,1991 has been enacted. The aforementioned amendment is also under challenge before the Supreme Court. 

Nature of Delhi in the federal scheme 

Delhi is a Union Territory under Schedule 1 of the Constitution. It has the absence of statehood. However, it has been declared as the “National Capital Territory” which is governed under Article 239AA. 

What are the factors that have led to power tussle in the Delhi Governance? 

Dilemmas of dual governance: Delhi is governed by the elected Council of Ministers i and the Central Government through the Administrator of Delhi, renamed as the Lieutenant Governor (L-G). Therefore, issues in the governance of Delhi arose, with respect to who is empowered to control the agencies, namely the Anti-Corruption Bureau, the Civil Services and the Electricity Board.  

The Supreme Court’s pronouncements with respect to the dual governance of Delhi 

Earlier, the Delhi High Court has decided in favour of the Central Government relying on the status of Delhi as a Union Territory.  

The SC decided on the substantial questions of law in reference to the powers of the elected government of Delhi vis-a-vis the L-G pertaining to the Administration of NCT. The observations made were: 

(1) The objectives behind the Constitution (Sixty-ninth Amendment) Act shall guide the interpretation of Article 239AA. Article 239AA was interpreted from the perspective of the principles of federalism and democracy, thereby, according a sui generis status to Delhi in distinction from other Union Territories (UT) which were more centrally governed. 

(3)  The Delhi Assembly 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. Further, in these matters, the LG is bound by the “aid and advice” of the Council of Ministers of Delhi. 

(4) 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 in case of a difference of opinion between L-G and the Council of Ministers. However, the SC ruled that “any matter” cannot be construed to mean “every matter”. The LG should refer only in exceptional circumstances.  

(5) L-G shall act as a facilitator rather than posing himself as an adversary to the elected Council of Ministers.  

(6) The SC ruled that the National Capital Territory of Delhi cannot be granted the status of a State under the constitutional scheme. 

(7) It was ruled that the Anti-corruption Bureau (ACB) comes under the Centre, the Electricity Board under the Government of NCT, a Commission of Enquiry under the Commissions of Enquiry Act can be constituted by the centre, the power to appoint Public Prosecutor is vested with Government of NCT.  

What were the unresolved questions? 

One Judge (In a two-judge bench of the SC) held that services should be outside the purview of the GNCTD, and the other judge held that officers below the rank of joint secretary are under the control of the Government of NCT. 

Way Forward 

Due to the split, the matter of services is being heard by a three-Judge Bench of the Supreme Court (SC). However, there are also demand to refer the matter to the Constitution Bench of the SC. 

The persons holding high office are expected to conduct themselves in faithful discharge of their duties. It would ensure smooth running of administration and protection of the rights of the stakeholders. 

Source: The post is based on an article “The Delhi dual governance conundrum”  published in the Hindu on 02nd May 2022.