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Jurisdiction Conflict in Delhi

Context: The Supreme Court has pronounced its verdict on the dispute between the Centre and the Delhi Government over matters pertaining to control over the transfers and overall functioning of administrative services in of Delhi.

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  • The Supreme Court (SC) has held that the National Capital Territory of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land.
  • The SC also referred to cooperative federalism under which the Union of India must exercise its powers within the boundaries created by the Constitution.
  • It is to be noted that due to the co-existence of Article 239AA and 239AB, there has been jurisdictional conflicts between the Government of NCT and the Union Government and its representative, the Lieutenant Governor.
  • Against this backdrop, the SC had given important judgments in Government of NCT of Delhi vs. Union of India case (2018) which settled many contentious issues such as the powers of the Lt. Governor.
    • Cooperative Federalism: Cooperative federalism implies the Centre and states share a horizontal relationship, where they cooperate in the larger public interest. It is visualised as an important tool to enable states’ participation in the formulation and implementation of national policies.
    • Competitive Federalism:  It refers to the relationship between the Central and state governments (vertical) or between state governments (horizontal). In a free-market economy, the endowments of states, available resource base and their comparative advantages all foster a spirit of competition. States need to compete among themselves and also with the Centre for benefits.
    • 239AA and 239AB: The 69th Amendment Act, 1992 added two new Articles 239AA and 239AB in the Indian Constitution. It conferred Special Status upon Delhi following the recommendations of the S Balakrishnan Committee that was set up in 1987 to look into Delhi’s demands for statehood.
    • According to Article 239AA, the NCT of Delhi will have an Administrator and a Legislative Assembly. The Legislative Assembly shall have the power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories” except on the subjects of police, public order, and land.
    • Article 239AB provides that the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article.

Background of the Issue

  • As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government. Accordingly, The Delhi government had appointed the public prosecutors for conducting the Delhi riot cases in the High Court.
  • However, the Lieutenant Governor (LG) stalled this decision, by referring it to the President under proviso to Article 239AA (4).
  • Moreover, the LG appointed all the prosecutors whose names were submitted by the Delhi Police (under the control of Ministry of Home Affairs) and thus the State government’s list was rejected.
  • This development reignited the LG vs Delhi Government’s jurisdiction debate which the Supreme Court addressed in NCT of Delhi vs. Union of India (2018).

Key Highlights of the 2018 Judgment

Status of Delhi under the Constitution Administration of Union Territory under Article 239(1) is different from Article 239AA which provides for an elected Legislature.

The court held that executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the state government headed by the Chief Minister.

It also held that the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.

LG to Act on ‘aid and advice’ of the Council of Ministers The court held that for establishing a democratic and representative form of government for NCT of Delhi, Government of Delhi that enjoys the confidence of the people of Delhi should have the functional autonomy to legislate for the NCT of Delhi.

Hence, through the judgment, the Supreme Court settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.

The Court also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government.

LG Cannot Refer ‘every’ Matter to the President Article 239AA (4) says that in the case of a difference of opinion between the LG and his Ministers on any matter, the LG shall refer it to the President for final decision and act according to it.

However, the court inferred that the words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.

The power of the Lieutenant Governor under the said provision represents the exception and not the general rule which has to be exercised in exceptional circumstances by the LG.

Limited References to be made to the President Normal administrative matters should not be referred to the President because it would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality.

The Court also held that the President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.

Unresolved Area in the Judgment The SC did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government.

Key Provisions of Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021

  • The Act amended the Government of National Capital Territory of Delhi Act, 1991. The Act amended certain powers and responsibilities of the Legislative Assembly and the Lieutenant Governor.
  • Restriction on laws passed by the Assembly: The Act provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (LG).
  • Rules of Procedure of the Assembly: The Act provides for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.
  • Inquiry by the Assembly into administrative decisions: The Act prohibits the Legislative Assembly from making any rule to enable itself or its Committees to:
    • Consider the matters of day-to-day administration of the NCT of Delhi and
    • Conduct any inquiry in relation to administrative decisions.
  • Assent to Bills: The Act requires the LG to also reserve those Bills for the President which incidentally covers any of the matters outside the purview of the powers of the Legislative Assembly.
  • LG’s opinion for executive actions: The Act specifies that all executive action by the government, whether taken on the advice of the Ministers or otherwise, must be taken in the name of the LG.
    • It also adds that on certain matters, as specified by the LG, his opinion must be obtained before taking any executive action on the decisions of the Minister/ Council of Ministers.

Way Forward

  • The Constitutional morality requires strict adherence to the constitutional principles of collaborative federalism, constitutional balance and the concept of constitutional governance. All these principles act as bulwark against the usurpation of powers of the State by the Union.
  • The constitutional scheme adopted for the NCT of Delhi conceives of the Council of Ministers as the representatives of the people on the one hand and the Lt. Governor as the nominee of the President on the other who are required to function in harmony within the Constitutional parameters.

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