By - King Stubb & Kasiva on May 30, 2023
The Indian Constitution, comprising 448 articles and 25 parts, plays a crucial role in governing the country. Within this framework, Article 239AA holds particular significance as it pertains to the special provisions granted to the union territory of Delhi. Recently, the interpretation of this article has sparked debates and confusion. In this blog post, we delve into the essence of Article 239AA and examine the Supreme Court's ruling on its application in the Delhi Services Verdict. Gain a comprehensive understanding of this constitutional provision and its implications by reading further.
Article 239 of the Indian Constitution addresses the administration of Union Territories. In a significant amendment, the 69th Amendment Act of 1991 introduced Article 239AA, granting a unique status and powers to the Union territory of Delhi. This amendment stemmed from the recommendations put forth by the S. Balakrishnan committee in 1987. In this blog post, we delve into the intricacies of Article 239AA, exploring the special provisions and powers conferred upon Delhi. Gain a comprehensive understanding of this constitutional article and its implications by reading further.
One of the primary concerns revolved around determining the jurisdiction and control over "services" in the National Capital Territory of Delhi. The ambiguity arose regarding whether the Government of the National Capital Territory of Delhi (GNCTD) or the lieutenant governor, acting on behalf of the Union Government, would exercise control over these crucial services. This issue sparked debates and raised questions about the interpretation and implementation of Article 239AA in relation to the governance of Delhi.
The controversy surrounding Article 239AA originated from a notification issued by the Union Ministry of Home Affairs on May 21, 2015. The notification stated that the Lieutenant Governor (LG) of NCTD would exercise authority over "public order," "police," and "land" to the extent delegated by the President. It also allowed the LG to seek the Chief Minister's opinion and advice at his discretion.
The notification excluded "Services" from the jurisdiction of the Government of National Capital Territory of Delhi (GNCTD), despite it being included in Entry 41 of the State List in the Constitution's Seventh Schedule. The Delhi High Court ruled that matters related to "Services" fell outside the purview of the Legislative Assembly of NCT of Delhi. However, a two-judge Supreme Court panel recognized the legal difficulty in interpreting Article 239AA and referred the matter to a Constitution Bench.
In the 2018 Constitution Bench decision, it was determined that the NCT of Delhi, unlike other Union Territories, possesses a representative form of government. The executive authority of the NCTD extends to subjects within its legislative authority, except those expressly prohibited. The phrase "in so far as any such matter is applicable to Union Territories" was interpreted as inclusive rather than exclusive, allowing the Legislative Assembly of Delhi to exercise its legislative power.
In 2019, a split decision by Justice Ashok Bhushan stated that the majority opinion judges of the 2018 Constitution Bench did not interpret the phrase "in so far as any such matter is applicable to Union Territories."
This intricate legal background set the stage for the subsequent deliberations and interpretations surrounding Article 239AA.
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In a significant case called Government of NCT of Delhi v. Union of India2, the Supreme Court provided its interpretation of Article 239AA to resolve the power conflict between the Delhi Government and the Union of India. The unanimous decision was reached on May 11, 2023, by a five-member bench.
The Court disagreed with Justice Bhushan's opinion in the 2019 split verdict and emphasized that the 2018 Constitution Bench judgment granted the NCT of Delhi (NCTD) wide executive and co-extensive legislative powers, except for explicitly excluded issues. It clarified that the phrase "in so far as any such matter is applicable to Union Territories" does not restrict NCTD's legislative authority.
Article 239AA forms the basis for the legislative powers exercised by the Parliament and the Legislative Assembly of the Union Territory of Delhi. The state government has the authority to create legislation concerning state public services and the state public service commission, as stated in Entry 41 of List II (State List). However, the potential legal recourse available to the Delhi government in case the Union government introduces an ordinance excluding "Services" from NCTD's scope or makes changes to the listed matters remains uncertain. Although such a law would likely be subject to court review, the specific principles, reasons, or requirements guiding this review are yet to be determined.
Article 239AA is a provision in the Indian Constitution that provides a special status to the Union Territory of Delhi, granting it a Legislative Assembly and a council of ministers
The conflict arose regarding the control and jurisdiction over "services" in Delhi's National Capital Territory, specifically whether it falls under the authority of the Government of National Capital Territory of Delhi (GNCTD) or the Lieutenant Governor (LG) acting on behalf of the Union Government.
The Delhi government does not have the authority to pass legislation related to State List entries 64, 65, and 66, as well as entries 1 (Public order), 2 (Police), and 18 (Land). These exclusions are specified under Article 239AA(3)(a).
 (2018) 8 SCC 501
2023 SCC OnLine SC 606
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