Article 239AA

May 22, 2023

Context:

The Centre promulgated an ordinance extending powers to the Delhi Lieutenant Governor over services in the administration of the national capital, which essentially involves the power to transfer and appoint bureaucrats posted to Delhi.

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This came a week after the Supreme Court handed over the control of services, excluding those related to police, public order and land, to the elected government in Delhi.

Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023:

The Centre promulgated the ordinance to create a National Capital Civil Service Authority for transfer of IAS and DANICS cadre officers and disciplinary proceedings against them.
It has the power to recommend the transfer and posting of all officers from All India Services serving in Delhi as well as vigilance matters related to them.

Constitution Bench’s verdict in May 2023:

In a unanimous verdict, the Supreme Court ruled that the Delhi government has legislative and executive powers over services.
The SC interpreted Article 239AA, the provision that deals with the governance structure of Delhi, as one that underlies the principles of federalism, participatory democracy, and collective responsibility.
Delhi government, similar to other States, represents the representative form of government and any further expansion of the Union’s power will be contrary to the Constitutional scheme.
The Supreme Court held that if administrative services are excluded from the legislative and executive domains, the ministers would be excluded from controlling the civil servants who are to implement the executive decisions.
If the officers stop reporting to the ministers or do not abide by their directions, the principle of collective responsibility is affected.
The officers feel they are insulated from the control of the government, which will dilute accountability and affect governance.

What is Article 239AA of the Constitution?

Inserted into the Constitution by the 69th Amendment Act, 1991, Article 239AA conferred special status on Delhi following the recommendations of the S Balakrishnan Committee.
According to this provision, the NCT of Delhi will have an administrator and a Legislative Assembly.
The Legislative Assembly shall have the power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories except on the subjects of police, public order, and land.

What has the Supreme Court said about Article 239AA?

In the majority ruling in 2018, the Constitution bench held that although Delhi could not be accorded the status of a state, the concept of federalism would still apply to it.
It said that with the introduction of Article 239AA in the Constitution, Parliament envisaged a representative form of Government for Delhi.
The court said that Article 239AA(3), revealed Parliament’s power to make laws for Delhi, for matters given in the State and Concurrent List.
The Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List.
The Centre has exclusive executive power with respect to Delhi over its police, land, and public order.
The court clarified that in respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi.
In case of a difference of opinion between the LG and the ministers, the LG shall refer the matter to the President for a decision and act according to it.
However, this difference of opinion should have a “sound rationale”. Such an interpretation would be in consonance with the concepts of pragmatic federalism.