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Legal System & Democratic Governance :

Comparative Perspective

By:
Ayush Agarwal,
Business Law.
LL.M
ID No. - 775
ARTICLE 239AA

SPECIAL PROVISIONS

WITH RESPECT TO

DELHI.
ACKNOWLEDGEMENT
First and foremost, I would like to sincerely express my gratitude to my
guide, DR. Justice S. Rajendra Babu , an authority on the Constitutional Law
who has taken keen interest in my topic and has extended all possible
guidance and co-operation in completing this research paper.

Given the busy schedule, he nevertheless has been always a guiding


force in the completion of this project.

I would also like to express my sincere thanks to all the staff of the
Library in the National Law School of India University, Bangalore, for
their whole-hearted support and co-operation.

Last but not the least, I would express my sincere gratitude to all my
teachers, friends and family, who have helped me in becoming what I
am today.
TABLE OF CONTENTS

Research Methodology1-2

Introduction.3

Historical Facts3-4

Article 239AA Special Provisions with respect to Delhi..5-7

Role of Political parties...7

Position According to Law.8-11

Case Law11-12

Conclusion.12-13

Suggestions14

Bibliography..15
RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:


The aim of the paper is to briefly analyse Article 239AA of the Indian Constitution. The paper
aims to throw light upon present position of National Capital Territory of Delhi, primarily
focusing on it as a state or a union territory in light of judicial pronouncements and its
background.

SCOPE AND LIMITATIONS:


The researcher has limited this research work till considering present position of Delhi in
accordance to Law, covering historical facts and jdicial pronouncements.

METHODOLOGY

The research methodology used in this research paper is a combination of analytical,


historical, and theoretical methods. Collection of data is from secondary sources. Book,
Journals and Magazines available in various libraries be the main source. And also from the
various web sites available on the Google search.

SOURCES OF DATA:
The following secondary sources of data have been used in the project-
1. Articles
2. Internet
3. Books
4. Case Laws
5. Journals

RESARCH QUESTIONS :
What is present position of Delhi in accordance with law?
What is the observation by Honble Delhi High Court on Article 239AA?

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HYPOTHESIS:
Delhi is a Union Territory

PLAN OF THE STUDY:

The entire paper is divided into three chapters.

The First chapter consists of Introduction, Historical Facts relating to National Capital
Territory of Delhi.

The Second chapter consists of Article 239AA of the Indian Constitution, The stand taken by
various political parties regarding statehood of Delhi.

The Third chapter consists of Present position of Delhi in accordance with Law, Finally Recent
Judgement by Honble Delhi High Court have been discussed upon.

At the end the researcher have given conclusion and possible suggestions to the issue.

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I

Introduction
Recently the unprecedented electoral victory of the Aam Aadmi Party in Delhi have revived
the debates on Full Statehood to Delhi. Since time immemorial the constitutional status of
the city has been debated upon.

The 69 th Amendment Act of 1991 provided a special status to the Union Territory of Delhi,
and redesignated it the National Capital Territory of Delhi and designated the administrator
of Delhi as the lieutenant (lt.) governor. It created a legislative assembly and a council of
minsters for Delhi. Previously, Delhi had a metropolitan council and an executive council. 1

The arguments for Full Statehood to Delhi are based on Fact that Government of National
Capital Territory of Delhi, have no jurisdiction over the police, Municipal Corporation of
Delhi and Delhi Development Authority. Lack of authority and supervisory control over
these three hinders the ability of elected government efficiency and limits its decision
making power. Further, multiplicity of agencies makes it complex for citizens to hold
government accountable.

Historical Facts
Under the Government of India Act 1935, Delhi was a federal unit of India despite
having minimum provincial autonomy as chief commissioner province. 2 The demand
for greater autonomy of Delhi has a long history. It began right in 1947 itself when a
recommendation made by the constituent assembly that Chief Commissioner provinces
like Delhi should be administered by the Lt. governor and the council of mi nisters
responsible to an elected legislature but it was not considered in the Draft Constitution
of 1948. A proposal was made that Chief Commissioner Provinces would be administered
by the President through a Chief Commissioner or the Lt. Governor or the ruler of a
neighbouring State. The President could also by an order create for any such area a local
legislature or council of advisor or both, with such powers and functions in each case as may
be specified in the order. The Draft was criticized.

1 M Laxmikant, Indian Polity,40.4-40.5, (Fifth Edition. 2017).


2 https://ia601900.us.archive.org/15/items/in.ernet.dli.2015.284304/2015.284304.The-Government.pdf

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When the State Reorganisation Commission (1956) recommended Delhi to be placed under
corporation with substantial power the demand for democratic and autonomous Delhi became
more distinct.
The First demand for Full Statehood for Delhi was raised in 1993, by Jan Sangh, agreed to
proposal but other parties demanded retention of democratic regime in Delhi. It was Ashok Sen
committee in 1962 which recommended the largest possible autonomy to the Union Territories.
In 1956 Delhi was named as Union Territory and National Capital Territory in 1991.

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II

239AA. Special provisions with respect to Delhi3:-


( 1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act,
1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi
(hereafter in this Part referred to as the National Capital Territory) and the administrator thereof
appointed under article 239 shall be designated as the Lieutenant Governor.

(2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats
in such Assembly shall be filled by members chosen by direct election from territorial
constituencies in the National Capital Territory.

(b) The total number of seats in the Legislative Assembly, the number of seats reserved for
Scheduled Castes, the division of the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters relating to the functioning of the
Legislative Assembly shall be regulated by law made by parliament.

(c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National
Capital Territory, the Legislative Assembly of the National Capital Territory and the members
thereof as they apply, in relation to a State, the Legislative Assembly of a State and the
members thereof respectively; and any reference in articles 326 and 329 to appropriate
Legislature shall be deemed to be a reference to Parliament.

(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have
power to make laws for the whole or any part of the National Capital Territory with respect to
any of the matters enumerated in the State List or in the Concurrent List in so far as any such
matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of
the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1,
2 and 18.

3 Article 239AA of the Indian Constitution

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(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this
Constitution to make laws with respect to any matter for a Union territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly with respect to any matter
is repugnant to any provision of a law made by Parliament with respect to that matter, whether
passed before or after the law made by the Legislative Assembly, or of an earlier law, other
than a law made by the Legislative Assembly, then, in either case, the law made by Parliament,
or, as the case may be, such earlier law, shall prevail and the law made by the Legislative
Assembly shall, to the extent of the repugnancy, be void:
Provided that if any such law made by the Legislative Assembly has been reserved for the
consideration of the President and has received his assent, such law shall prevail in the National
Capital Territory:
Provided further that nothing in this sub-clause shall prevent Parliament from enacting at
any time any law with respect to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislative Assembly.

(4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total
number of members in the Legislative Assembly, with the Chief Minister at the head to aid and
advise the Lieutenant Governor in the exercise of his functions in relation to matters with
respect to which the Legislative Assembly has power to make laws, except in so far as he is,
by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the Lieutenant Governor and
his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President and pending such decision it
shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is
so urgent that it is necessary for him to take immediate action, to take such action or to give
such direction in the matter as he deems necessary.

(5) The Chief Minister shall be appointed by the President and other Ministers shall be
appointed by the President on the advice of the Chief Minister and the Ministers shall hold
office during the pleasure of the President.

(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.

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(7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the
provisions contained in the foregoing clauses and for all matters incidental or consequential
thereto.

(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment
of this Constitution for the purposes of article 368 notwithstanding that it contains any
provision which amends or has the effect of amending, this Constitution.
(8) The provisions of article 239B shall, so far as may be, apply in relation to the National
Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in
relation to the Union territory of Puducherry, the administrator and its Legislature, respectively;
and any reference in that article to clause (1) of article 239A shall be deemed to be a reference
to this article or article 239AB, as the case may be.

Role of Political Parties


All major political parties have called for statehood to Delhi.

Shiela Dixit asked for it in later years of her tenure.

BJP has been calling for that since 1990s but they have raised their demand for
statehood every time around assembly elections only.

AAP is also promising to provide for statehood.

All political parties have consistently been making promises since 1993 to the electorates for
full statehood for Delhi but without any determination and conviction.
There are various bodies in Delhi some controlled by state, some elected, and some under

central government's control.

MCD (Municipal Corporation of Delhi) is an elected body with a mayor as its head.

NDMC (New Delhi Municipal Council) is governed by a council with a chairman

appointed by the central government and includes the chief minister of Delhi.

NCT (National Capital Territory) is headed by the lieutenant governor who also

happens to be the chairman of the Delhi Development Authority (DDA).

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Due to ideological differences in state and central government, it is the development of
Delhi which suffers.

III

Position According to Law


The parliament, in 1991, through the sixty-ninth constitutional amendment inserted Article
239AA (Special Provisions with respect to Delhi) by which rights were conferred upon
people of Delhi to elect their own government for making laws under certain entries of state
list of 7th Schedule of the Constitution and their execution respectively.

Full Statehood upon Delhi was not conferred by this amendment.4 Clause 3(a) of Article
239AA states that the Legislative Assembly of the National Capital Territory of Delhi shall
have power to make laws for the whole or any part of the NCT with respect to any of the matters
enumerated in the State List [Except matters with respect to Entries 1 (Public Order), 2
(Police) and 18 (Land)] or in the Concurrent List in so far as any such matter is applicable to

Union Territories.... The scope of Legislation on entries of the State List of the seventh

Schedule of the Constitution is further narrowed by words in so far as any such matter is
applicable to Union Territories.

Apart from 1, 2 and 18 all the entries of the State List that are not applicable to Union
Territories would be beyond the jurisdiction of the Legislative Assembly of the NCT of Delhi.
For example, Entry 41 of the State List empowers states to legislate on State Public Services
and State Public Service Commission. But Union Territories do not have any separate Public
Service Commission and officers in Union Territories qualify through the Union Public Service

4 Article 239 (3)(a) of the Constitution: (3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect
to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is
applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64,
65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.

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Commission (UPSC) and belong to the Union Territory Civil Services 5 (AGMU) Cadre of
IAS/IPS and DANICS6). Thus, Entry 41 of the State List is not a matter applicable to Union

Territories and the Legislative Assembly of the NCT of Delhi cannot Legislate under Entry

41. Clause 1 of Article 239 of the Constitution states that Save as otherwise provided by

Parliament by law, every Union territory shall be administered by the President acting, to such
extent as he thinks fit, through an administrator to be appointed by him with such designation

as he may specify. It is clearly provided under Article 74 of the Constitution that the

President shall Act in accordance with the aid and advise of the Union Executive .

Article 239AA, Clause 1 of the Constitution states that the Administrator appointed under

Article 239 shall be designated as the Lieutenant Governor . Clause 47 of Article 239AA

provides for the Executive of the NCT of Delhi and empowers the Council of Ministers headed
by the Chief Minister to aid and advise the Lt. Governor in the exercise of his functions in
relation to matters with respect to which the Legislative Assembly has power to make laws.

The power of the Council of Ministers headed by the Chief Minister to aid and advise the Lt.
Governor extends only to the matters with respect to which the Legislative Assembly of the
NCT of Delhi has power to legislate and not beyond these matters. The balance of power gets

further tilted upon reading the proviso to Clause 4 of Article 239AA in favour of the Lt.
Governor as it clearly states that in the case of difference of opinion between the Lieutenant
Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the
President for decision and act according to the decision given thereon by the President and
pending such decision it shall be competent for the Lieutenant Governor in any case where the
matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take
such action or to give such direction in the matter as he deems necessary. The Government
of National Capital Territory of Delhi Act, 1991, was enacted by the parliament in order to

5 AGMU: Arunachal Pradesh, Goa, Mizoram and Union Territories

6 DANICS Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil
Services

7 Article 239 (4) of the Constitution

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supplement the sixty ninth Amendment to the Constitution. Wide discretionary power upon the
Lieutenant Governor of Delhi is Section 418 of the NCT Act clearly conferred and the
discretion is for all the powers or functions which are entrusted or delegated to him by the
President and the matters that fall outside the powers conferred on the Legislative Assembly.

Section 41, Clause 2 provides that If any question arises as to whether any matter is or is not
a matter in which the Lt. Governor is required to exercise his discretion, the decision of the Lt.

Governor thereon shall be final.

The President is empowered by Section 44 9 to make rules for the allocation of business to
the Ministers in so far as it is business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of Ministers.

The Lt. Governor, therefore has to act on the aid and advise of his Council of Ministers only
with respect to the matters for which the Legislative Assembly has been empowered under
Article 239AA of the Constitution.

The elected government of the NCT of Delhi is not empowered to legislate on any civil service

8 S. 41 of the NCT Act, 1991 : Matters in which Lieutenant Governor to act in his discretion:

(1) The Lieutenant Governor shall act in his discretion in a matter: - (i) which falls outside the purview of the
powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or
delegated to him by the President ; or (ii) in which he is required by or under any law to act in his discretion or
to exercise any judicial functions.

(2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor
is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be
final.

(3) If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor
is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the
Lieutenant Governor thereon shall be final.

9 S.44. of then NCT Act: Conduct of business: (1) The President shall make rules :

(a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant
Governor is required to act on the aid and advice of his Council of Ministers; and(b) for the more convenient
transaction of business with the ministers, including the procedure to be adopted in the case of a difference of
opinion between the Lieutenant Governor and the Council of Ministers or a Minister.

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or state public services.

It has been provided by Rule 4610 of the rules that the Lt. Governor shall exercise such powers
and perform such functions as may be entrusted to him under the provisions of the rules and
orders regulating the conditions of service of such persons.

To summarise the above provisions: The administrator of the NCT of Delhi is the Lt.

Governor. The administrator of a Union Territory has been given the task of posting civil
servants of the Union Territory to a duty post.

Case Law

Govt. (NCT of Delhi) v. Union of India11

In this case Honble Delhi High Court held that Lieutenant Governor is the administrative head
of National Capital Territory of Delhi and he is not required to act on the advice of Delhi
cabinet.

Observations of Court:

1. In accordance with Article 239 and 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 National Capital Territory of Delhi Rules
1993. It becomes clear that Delhi continues to be a Union Territory even after the

10 Rule 46. 46. (1) With respect to persons serving in connection with the administration of the National Capital
Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted
to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any
other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by
the President under article 239 of the Constitution.

(2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public
Service Commission on all matters on which the Commission is required to be consulted under clause (3) of
article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance
with the advice of the Union Public Services Commission unless authorised to do so by the Central Government.

(3) All correspondence with Union Public Service Commission and the Central Government regarding
recruitment and conditions of service of persons serving in connection with the administration of National Capital
Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction
of the Lieutenant Governor.

11 2016 SCC OnLine Del 4308

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Constitutional (69th) Amendment Act 1991.

2. Article 239 of the constitution continues to be applicable to NCT of Delhi and


insertion of Article 239AA has not diluted the application of Article 239 in any
manner.

3. It is mandatory under the constitutional scheme to communicate the decision of the


Council of Ministers to the Lt. Governor even in relation to the matters in respect of
which power to make laws has been conferred on the Legislative Assembly of NCT of
Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon
can be issued only where the Lt. Governor does not take a different view and no
reference to the Central Government is required in terms of the proviso to clause (4) of
Article 239AA of the Constitution read with Chapter V of the Transaction of Business
of the Government of NCT of Delhi Rules, 1993.

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CONCLUSION:

Delhi, the national capital territory (NCT) of India, has a complex situation in its hands. It has
an elected legislative assembly, but it is also a Union Territory (by definition, a piece of land
directly ruled by the Union or Central government). Thus, it has an elected government headed
by Chief Minister who runs the administration, while at the same time it has the lieutenant
governor (LG.), appointed by the President, acts as the head of the state.

The Honble Delhi High Court in its recent judgement considered Delhi as Union Territory
(UT) and Lt. Governor as the sole and final administrator but in the process missed out
democratic ethos and sentiments.

The insertion of Article 239AA followed by GNCTD Act was a significant progress towards
the statehood.

Article 239AA (4) read with Section 41 of GNCTD Act, 1991 makes it clear that the discretion
of the Lt. Governor extends only to matters which falls outside the Legislative Assembly of
Delhi i.e. Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of the List in so far as
they relate to the said entries; or in respect of matters of which powers are entrusted or
delegated to him by the President [Article 239AB] or where he is required by law to act in his
discretion.

If Lt. Governor is the sole administrator (as a representative of the President) then provision
for President Rule (See Article 239AB) makes no sense. It would be absurd to apply Presidents
Rule in Presidents own Territory.

Article 239AA is a self-contained code and only in case of failure of constitutional machinery
the President may bring NCT under Article 239.

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Lt. Governor as an executive head enjoys certain more discretion in comparison to a Governor
of State, but otherwise he has to act in accordance with the aid and advice of the Council of
Ministers. Making him singular authority will erode the democratic and responsible
governance at the cost of demos. Neither is the government able to serve its people nor is the
Lt. Governor able to keep his oath to preserve, protect and defend the Constitution.

From above material it can be concluded that Delhi though included in Part VIII of the
Constitution would function as State for all purposes except few instances where it will
function as Union Territory in accordance with Article 239AB of the Constitution.

Suggestions :

The Delhi police should come under the Government of National Capital Territory of Delhi so
that the elected government gets the authority and can be held accountable for maintaining law
and order.

The New Delhi Municipal Area where there is the seat of central government and embassies
should come under Centre-controlled police force.

Granting full statehood to Delhi would mean that all agencies presently under control of Union
are answerable to the Government of National Capital Territory of Delhi and through them
become directly accountable to people of Delhi. Having too many bodies administering the
various developmental tasks adds to various delays and inefficiency. It would help in better
coordination between various government departments and putting a stop to the blame game
between the union and state government.

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Bibliography

Primary Sources
List of Statutes

Constitution of India, 1950.


The Government of National Capital Territory of Delhi Act, 1991.
The Constitution( Sixty-Ninth Amendment) Act, 1991

List of Sites

https://ia601900.us.archive.org/15/items/in.ernet.dli.2015.284304/2015.284304.The-
Government.pdf
http://scconline.com

Secondary Sources
Books

M Laxmikant, Indian Polity (Mc Graw Hill Education, Fifth Edition, 2017)
M.P Jain, Indian Constitutional Law (Lexis Nexis Butterworths Wadhawa, 6th edn.,
Nagpur, 2010)
Mahendra P Singh , V.N Shuklas constitution of India ( Eastern Book Company,
Lucknow, 11th edn., 2008)

Webbilography

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Apula Singh, Decoding Delhis Demand for Full Statehood, available at
https://thewire.in/
Shubh Soni, Statehood for Delhi: Is it practical?, available at
http://www.orfonline.org/

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