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The Editorial Analysis-Third and Final Round

NCT of Delhi- Relevance for UPSC Exam

GS Paper 2: Indian Constitution– Federalism- Issues and challenges pertaining to the federal structure in India.

In what may be considered as the third round of litigation between NCT of Delhi and Union Government, the Top Court- Supreme Court of India is expected to embark on interpreting a couple of phrases in Article 239AA, which confers a unique status for Delhi.
The complexities of the law governing the National Capital Territory (NCT) of Delhi will once again be under elaborate judicial focus.

A split verdict by a two-judge Bench on the question whether ‘services’ fell under the Union government’s domain or the NCT government led to constitution of the present constitutional bench.
This has flagged the absence of a determination in the Constitution Bench verdict on the question whether Entry 41 of the State List (services) is within the NCT’s executive and legislative domain.
Entry 41 is not one of the excluded areas of legislation by the Delhi Assembly, but it has been argued that there are no services under the Delhi government and, therefore, it was not a matter applicable to the NCT at all.
This led to the requirement of constituting a new constitutional bench to clarify the constitutional domain of Entry 41.

Article 239AA: Under Article 239AA, the Delhi Assembly can make law on all other matters in the State and Concurrent Lists ‘insofar as such matter is applicable to Union Territories’.
Exception to the powers of Delhi government: Delhi government can’t make laws in matters of police, public order and land.
- In these three domains, Union Government is empowered to legislate for the NCT of Delhi.

Background: In 2018, a five judges constitutional bench of supreme court had rendered an authoritative pronouncement in 2018 on various questions that arose from Article 239AA. Through three concurring opinions, the SC Constitutional Bench had ruled that-
- Delhi was indeed a Union Territory, but the Lieutenant Governor, as the Administrator appointed by the President, should act as per the aid and advice of the Council of Ministers.
- Aid and Advice provision is applicable in areas in which legislative power was conferred on Delhi’s Legislative Assembly.
Impact of 2018 Ruling: The 2018 ruling limited the Lieutenant Governor’s domain by making it clear that not every decision required his concurrence.
- It had cautioned against the notion of representative democracy being negated, if legitimate decisions of the Council of Ministers were blocked merely because the Lieutenant Governor had a different view.
- The Lieutenant Governor’s power to refer “any matter” on which he disagreed with the elected regime did not mean he could raise a dispute on “every matter”.
Present Constitutional Bench: The reference to a five-member Bench will be strictly limited to the interpretation of a couple of phrases that were not examined by the earlier Bench (2018 bench), and no other point will be reopened.

Settling this remaining question should give a quietus to the endless wrangling between the Modi government at the Centre and the Kejriwal regime in Delhi.

shivam