Explainer: The never-ending legal tussle over Delhi’s administrative control

This incident has once again ignited the debate over who holds the reins of power in the national capital. It is important to note that since 2015, the Union government and the AAP government in Delhi have been at loggerheads on various issues, ranging from the powers of the Lieutenant Governor (LG) to control over services.

Important Facts

In mid-1947, when India was only a few months away from gaining full independence and the Constituent Assembly was deliberating over the nature of independent India’s Constitution, a special Committee headed by Pattabhi Sitaramayya held a detailed discussion over the governance structure of the national capital.

The Sitaramayya Committee recommended a separate self-government in Delhi with a three-member Council of Ministers to aid and advise the Lieutenant Governor and a 50-member Legislative Assembly with power to legislate on all matters in the State List and the Concurrent List, which meant a near-statehood for the capital city. Jawaharlal Nehru, Sardar Patel, C. Rajagopalachari, Dr Ambedkar and Dr Rajendra Prasad, among others rejected this proposal outrightly.

So, the debate over who controls the national capital is as old as the independent India.

Initially, Delhi was a Part C State. It was made a Union Territory in 1956. Following the recommendations of the Balakrishnan committee (1989) and with the 69th Constitutional amendment it got a Legislative Assembly with the enactment of the National Capital Territory Act, 1991. Years that followed saw the Congress government at the Centre with few interregnums ensuring the absence of conflict between two centres of power.

However, since 2015, (with the BJP coming to power in the Centre) there has been an ongoing power tussle between the Union government and the Delhi government with many attempts being made to resolve this tussle through court interventions.

Delhi High Court Judgment, 2016

In 2015, the Union government issued a notification taking away the control over services from the Delhi legislature, and empowering the Lieutenant Governor (LG) to discharge functions of the Central Government in relation to the same.

In 2016, the Delhi High Court ruled that the LG is the "administrative head" of the national capital. “The matters connected with 'Services' fall outside the purview of the Legislative Assembly of NCT of Delhi... Therefore, the direction in the impugned Notification [of the Centre] of February, 2015 that the Lt. Governor of the NCT of Delhi shall in respect of matters connected with 'Services' exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional”, the Bench headed by Chief Justice G. Rohini.

In its 194-page judgement, the court concluded that “On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi.”

Article 239 and Article 239AA

According to the Supreme Court Observer under Article 239 of the Constitution of India, the administration of UT’s is handled by an administrator appointed by the President. However, in 1991, the Constitution (Sixty-ninth Amendment) Act, 1991 introduced Article 239AA which created an elected Legislative Assembly and a Council of Ministers including a Chief Minister for NCT Delhi. This Assembly has the power to make laws for NCT Delhi with respect to any of the matters under the State or Concurrent Lists (except public order, police and land matters). The ‘Lieutenant Governor’ (the LG) of Delhi was designated the Administrator of the NCT Delhi.

The relationship between Articles 239 and 239AA is the source of the current political contest between the Union and NCT Delhi government over the administrative control over the NCT Delhi territory. The SC has previously ruled upon the scope of the LG’s powers in 2018. A five-judge Bench held that the LG is bound by the aid and advice of the Council of Ministers for all matters where the Legislative Assembly has the power to make laws. They also ruled that the LG only needs to be consulted on decisions taken by the Council, but his concurrence isn’t required.

Appeal against HC judgment and the SC judgment of 2018

The Delhi government appealed against the Delhi High Court judgment. The Supreme Court in 2018 held that LG must act on the “aid and advise” of the council of ministers of Delhi.

The Union Government sought to overcome the Supreme Court’s decision by enacting the Government of National Capital Territory (Amendment) Act, 2021 (the Amendment) which came into force on April 27th, 2021. The amendment expanded the list of matters where the LG’s opinion was mandatory and the nature of Bills that the LG could refer to the President.

Again in 2023, a Constitution Bench of the Supreme Court gave control over services in Delhi to the Delhi government.

In response, the Union government promulgated an Ordinance to amend the Government of the National Capital Territory of Delhi (GNCTD) Act, 1991, excluding “services” from the purview of the Delhi legislature.

It also established the National Capital Civil Services Authority, which consists of the Chief Minister, the Chief Secretary of Delhi, Principal Home Secretary of Delhi.

The Authority will make recommendations to the Lieutenant Governor (LG) regarding transfers and postings of officials and disciplinary matters. The Ordinance empowers the LG to exercise his sole discretion on several matters including those related to the National Capital Civil Services Authority, and the summoning, prorogation and dissolution of the Delhi Legislative Assembly.

In August 2023, the Union government introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, which was passed in both houses of Parliament and got the assent of the President on August 12. The Delhi government has challenged this new act in the apex court which is yet to hear the appeal.