Delhi: Article 239AA and the Dispute Over Services

Clause (3)(b) preserves Parliament's power to make laws for the Union territory on any matter.

Clause (3)(c) provides that if a provision of a law made by the Assembly is repugnant to a law made by Parliament, the Parliamentary law prevails and the Assembly's law is void to the extent of the repugnancy, unless the Assembly's law has been reserved for the President and received his assent, and even then Parliament may add to, amend, vary or repeal it.

Clause (4) provides for a Council of Ministers, not more than ten per cent of the total number of members of the 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 on which the Assembly has power to make laws, except in so far as he is required to act in his discretion. The proviso provides that in the case of a difference of opinion between the Lieutenant Governor and his Ministers on any matter, he shall refer it to the President and act according to the President's decision, and pending that may take immediate action where the matter is urgent.

Article 239AB provides for the President to suspend the operation of article 239AA where the administration cannot be carried on in accordance with it, which is Delhi's version of article 356.

And the Government of National Capital Territory of Delhi Act 1991 supplies the machinery, section 41 defining the matters in which the Lieutenant Governor acts in his discretion and section 44 the conduct of business.

The two judgments

2018: the aid and advice binds. In Government of NCT of Delhi v. Union of India (2018), (2018) 8 SCC 501, decided on 4 July 2018 by five judges. Facts. A batch of petitions in the Delhi High Court about unresolved issues between the Lieutenant Governor and the Council of Ministers headed by the Chief Minister; the High Court decided on 4 August 2016 and the appeals were referred to a Constitution Bench in February 2017. Held, among its conclusions. The interpretation of the Constitution must be purposive without giving the express language a complete go-by; that Parliament may make laws for the National Capital Territory on any matter in the State and Concurrent Lists while the Assembly has power over the State List except the excluded entries and over the Concurrent List; that executive power is co-extensive with legislative power; and that the aid and advice of the Council of Ministers under clause (4) is binding on the Lieutenant Governor unless he decides to exercise the power in the proviso to refer a difference to the President.

2023: and services belong to Delhi. In Government of NCT of Delhi v. Union of India (2023), decided on 11 May 2023 by five judges. Facts. A reference of 6 May 2022 on the scope of Delhi's legislative and executive power over services, Entry 41 of List II. Held. There is no homogeneous class of Union territories with similar governance structures and that Delhi is sui generis; that the Assembly has competence over Lists II and III except the expressly excluded entries while Parliament has competence over all of Lists II and III in relation to Delhi including the excluded ones; that Delhi's executive power is co-extensive with its legislative power and the Union has executive power only over the three excluded entries; that the words "insofar as any such matter is applicable to Union Territories" cannot be read to exclude further entries; and that Delhi has legislative and executive power over services, Entry 41 of List II, because the definition of State in section 3(58) of the General Clauses Act 1897 applies to Part XIV so that Part XIV applies to Union territories, and because the rule-making power under the proviso to article 309 does not oust the legislative power over Entry 41.

What Parliament did next

An Ordinance eight days later. The Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 was promulgated on 19 May 2023, and the Amendment Act followed.

It inserted a new Part IVA into the Act of 1991. Section 45D empowers the President to appoint authorities, boards, commissions and statutory bodies notwithstanding anything in any other law. Section 45E constitutes the National Capital Civil Service Authority, consisting of the Chief Minister as Chairperson ex officio, the Chief Secretary as Member ex officio, and the Principal Home Secretary as Member-Secretary ex officio. Section 45H confers its powers and functions, beginning "Notwithstanding anything contained in any other law". Sections 45I to 45K deal with the disposal of matters by a Minister, the duties of Secretaries, and the rule-making power.

Note the composition, because it is the point. The Authority that decides transfers and postings of civil servants consists of the elected Chief Minister and two civil servants, so the elected member can be outvoted two to one, and the recommendation goes to the Lieutenant Governor.

The constitutional question that follows is a real one. Article 239AA(3)(b) preserves Parliament's power to legislate for Delhi on any matter, so Parliament had the competence. The argument against the Act is that a law which removes from an elected government the control of the officers who execute its policy hollows out the very institution the Sixty-ninth Amendment created, and that representative democracy and federalism are basic features. The argument for it is that Delhi is a Union territory, that article 239AA(3)(b) is express, and that the Constitution nowhere guarantees any particular allocation of services in a Union territory.

A worked example

The elected Delhi government wishes to transfer a Secretary who it says is obstructing a flagship scheme. Trace the position at four dates.

Before 4 July 2018. The Lieutenant Governor's position was that he could act independently of the Council of Ministers on any matter. The transfer would not happen without his agreement.

After the 2018 judgment. The aid and advice of the Council binds him unless he refers the difference to the President under the proviso. So the transfer happens unless he refers, and a reference must be a genuine difference on a matter rather than a routine device.

After 11 May 2023. Services are within Delhi's legislative and executive power, so the transfer is the elected government's decision.

After the Amendment Act of 2023. The transfer is decided by the National Capital Civil Service Authority, on which the Chief Minister sits with two civil servants, and its recommendation goes to the Lieutenant Governor. The elected government can be outvoted.

The example is the chapter. Nothing in the constitutional text changed between the third and fourth dates. What changed was an ordinary Act of Parliament passed under a clause that has been in article 239AA since 1991.

Distinctions

What it does NOT mean

It does not mean Delhi is a State. It is a Union territory with a special provision, and article 239AA(3)(b) preserves Parliament's power over every matter.

It does not mean the Lieutenant Governor is a figurehead. He acts in his discretion on the three excluded subjects, on matters where the law requires it, and he may refer a difference to the President under the proviso.

It does not mean the 2023 judgment was overruled. It was not: an Act of Parliament changed the statutory position on services, and the judgment's constitutional reasoning about article 239AA stands.

And it does not mean the Amendment Act is beyond challenge. Its validity has been questioned on basic structure grounds, and a candidate should present the argument on both sides rather than assert an outcome.

Quick revision

Article 239AA, inserted by the Sixty-ninth Amendment 1991: a Legislative Assembly for the National Capital Territory with power over the State and Concurrent Lists except entries 1, 2 and 18 of List II, public order, police and land, and entries 64, 65 and 66 so far as they relate to them; clause (3)(b) preserves Parliament's power over any matter; clause (3)(c) makes a repugnant Assembly law void unless reserved and assented to, and even then Parliament may override it; clause (4) provides for a Council of Ministers to aid and advise the Lieutenant Governor, with a proviso for referring a difference to the President. Article 239AB is Delhi's article 356. The Act of 1991 supplies the machinery. Government of NCT of Delhi (2018): purposive interpretation; executive power co-extensive with legislative; the aid and advice binds unless the proviso is used. Government of NCT of Delhi (2023): Delhi is sui generis; its executive power is co-extensive with its legislative power; the Union has executive power only over the three excluded entries; and Delhi has legislative and executive power over services under Entry 41 of List II. The Ordinance of 19 May 2023 and the Amendment Act inserted Part IVA, sections 45D to 45K, creating the National Capital Civil Service Authority of the Chief Minister and two civil servants.

Test yourself

1. Which three subjects are excluded from the Delhi Assembly's competence, and why? Public order, police and land, entries 1, 2 and 18 of List II, together with entries 64, 65 and 66 so far as they relate to them. They are excluded because the seat of the Union government cannot be under the exclusive control of a State-level government.

2. What did the 2018 judgment decide about the Lieutenant Governor? That the aid and advice of the Council of Ministers under article 239AA(4) is binding on him unless he decides to exercise the power in the proviso to refer a difference of opinion to the President, and that executive power is co-extensive with legislative power.

3. What did the 2023 judgment decide about services, and on what reasoning? That Delhi has legislative and executive power over services, Entry 41 of List II, because the definition of State in section 3(58) of the General Clauses Act 1897 applies to Part XIV so that Part XIV applies to Union territories, and because the rule-making power under the proviso to article 309 does not oust the legislative power over Entry 41.

4. What did Parliament do afterwards, and under what power? It enacted the Government of National Capital Territory of Delhi (Amendment) Act 2023, following an Ordinance of 19 May 2023, inserting Part IVA and creating the National Capital Civil Service Authority. Its competence rests on article 239AA(3)(b), which preserves Parliament's power to legislate for the National Capital Territory on any matter.

5. Who sits on the National Capital Civil Service Authority, and why does the composition matter? The Chief Minister as Chairperson ex officio, the Chief Secretary as Member ex officio and the Principal Home Secretary as Member-Secretary ex officio. It matters because the single elected member can be outvoted by the two officials.

6. State the constitutional argument on each side of the Amendment Act. Against: a law removing from an elected government control of the officers who execute its policy hollows out the institution the Sixty-ninth Amendment created, and representative democracy and federalism are basic features. For: Delhi is a Union territory, article 239AA(3)(b) expressly preserves Parliament's power over every matter, and the Constitution guarantees no particular allocation of services in a Union territory.