Thursday, February 2, 2023

No ceasefire in Delhi’s Battle Royale

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The Delhi High Court while adjudicating between the Government of National Capital Territory of Delhi (GNCTD) and the Union of India has clarified that Delhi remains a union territory. It also noted that the Lieutenant Governor (LG) of a union territory exercises the powers of an administrator on behalf of the president. The High Court made it clear that LG’s powers are more than that of a governor of a state and the former is not so tightly bound by the “aid and advice” of the council of ministers as the latter.

Article 239 of the constitution deals with union territories. Article 239AA has been added especially for Delhi to have a legislative assembly, on the recommendations of the Balakrishnan Committee. This committee was constituted for “Reorganization of the Delhi Set-Up” and “formed the basis of the 69th Amendment to the Constitution as well as enactment of the Government of NCT of Delhi Act, 1991”.

The judgment pointed out that there are three different types of union territories. One, that does not have a legislature like the Andaman and Nicobar Islands, Dadra and Nagar Haveli and Chandigarh. The second, like Puducherry, has a legislature created under an act of parliament. The third category is the National Capital Territory of Delhi which has a legislature provided for in Article 239AA of the constitution.

The court cited various documents, such as the statement of objects and reasons of the Constitution (74th Amendment) Bill, 1991, in which Delhi was clearly referred to as a union territory. It also went through NDMC vs State of Punjab in which the Supreme Court has held that Delhi is a union territory.

While the counsel for GNCTD argued that LG is bound by the aid and advice of the council of ministers, Additional Solicitor General Sanjay Jain, arguing for the Union of India, pointed out through constitutional provisions, various legislations as well as case laws that the position of the LG of a union territory and that of a governor of a state are different. He contended that the LG of a union territory has more discretionary powers and even Article 239AA (4) provides for greater powers to the LG.

GNCTD lawyers had cited the 13th July judgment of the Supreme Court in the recent Arunachal case, Nabam Rebia and Bamang Felix vs Deputy Speaker & Ors, to show that the governor is bound by the aid and advice of the council of ministers. However, the Union of India cited Devji Vallabhbhai Tandel vs Administrator Goa, Daman & Diu; (1982) 2 SCC 222 to prove that the powers of the governor of a state are different from the powers of an LG.

The court held that the scope of “aid and advice” in Article 239AA (4) of the constitution is not comparable to the scope of “aid and advice” received by the governor of a state under Article 162 of the constitution. It observed that legislative powers have been given to some union territories only to ease the burden of work on the central government. But these legislative powers are not on par with the legislative competence of the states, the court held.

While dealing with the issue of civil servants, the court held that certain areas like “services” are out of the purview of GNCTD. It said Delhi is served by a civil service and police service—DANICS and DANIPs—that are shared with other union territories, hence these services come under the control of the union.

The court also held that “Notification S.O. 1368(E) dated 21.05.2015 that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference since the power is traceable to Entry 2 (Police) of List II of the Seventh Schedule to the Constitution in respect of which the Legislative Assembly of NCTD has no power to make laws”.

Even as the case came up before the Delhi High Court, the government of Delhi had already filed a suit under Article 131 in the Supreme Court. GNCTD lawyers had taken the view that only the Supreme Court was competent to adjudicate between the centre and the states as per Article 131. However, the lawyers for the Union opposed this move of the Delhi government on the ground that the issue involved did not fall under the purview of Article 131. The Supreme Court had clearly pointed out in State of Rajasthan vs Union of India that Article 131 is not meant to sort “mere wrangles between governments”, but comes into effect when a legal right of a state is in dispute.

The hearing under Article 131 has been adjourned by the Supreme Court on August 5. The apex court will now take up the matter along with a Special Leave Petition that GNCTD plans to file against the Delhi High Court verdict.

—India Legal Bureau

Lead Picture: (L-R) Delhi CM Arvind Kejriwal and Najeeb Jung, LG, Delhi. Photos: UNI

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