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DR.

RAM MANOHAR LOHIA NATIONAL


LAW UNIVERSITY, LUCKNOW

INTERPRETATION OF STATUTES
Project
On
Constitutional Status of Delhi

Submitted to:
Mr. Manwendra Kumar Tiwari
Asst. Professor (Law)

Submitted by:
Sakshi
B.A.LL.B (V SEM.)
Roll no. -111

ACKNOWLEDGEMENT
A major research project like this is never the work of anyone alone. Firstly, I would like to
thank my teacher Mr. Manwendra Kumar Tiwari, for giving me such a golden opportunity to
show my skills and capability through this project.
This project is the result of the extensive ultra-pure study, hard work and labour, put into to
make it worth reading. This project has been completed through the generous co-operation of
various persons, my teacher, and my seniors, who, in their different potentials helped me a lot
in giving the finishing touch to the project.
This project couldnt be completed without the help of my universitys library Dr. Madhu
Limaye Library and its internet facility.

Thank you..

TABLE OF CONTENTS

1. Introduction
2. History of making Delhi a UT with special status
3. Legislations regarding constitutional status of Delhi
Constitutional of India
Government of National Capital of Delhi Act, 1991 ( page no. 24 of the case)
Transaction of business rules, 1993
4. Case
Government of NCT of Delhi v. UOI
5. Conclusion
6. Bibliography

INTRODUCTION

As we have seen that constitutional status of Delhi is not so clear, it keeps on changing from
time to time and actual controversy is about demarcation of powers between legislative
assembly and Lieutenant Governor. As far as history goes, the union territories were either
not a part of India during independence or they were too small to be made into a state as per
the provision of the Constitution. During the discussion on reorganisation of states in 1956,
the States Reorganisation Commission recommended creation of a different category for
these territories since they neither fit the model of a state, nor do they follow a uniform
pattern when it comes to governance. It was observed that these economically unbalanced,
financially weak, and administratively and politically unstable territories cant survive as
separate administrative units without depending heavily on the Union government. Thus the
Union Territories were formed.
Prior to the Constitution (Seventh Amendment) Act, 1956 the States which formed the Union
of India were classified into four categories and enumerated in Parts A, B, C and D of the
First Schedule of the Constitution. The first three categories were the "States" that formed the
Union of India and the fourth category was "territory". To implement the scheme of States
Reorganisation Act, 1956, on 1.10.1956, the Constitution (Seventh Amendment) Act 1956
was passed and the territorial basis of the Union Part B and Part C States were abolished and
a new category of States called the Union territories were brought into existence. The three
categories of "State" i.e., Part A, Part B and Part C would now be one class and the category
of "territory in Part D" was replaced by "Union Territory". Thus, the first part of the First
Schedule comprises the territories of the States that forms the Union and the second part of
the First Schedule comprises the "Union Territories". Delhi is listed as Entry 1 of the second
part of the First Schedule. This is how Delhi came into existence as Union Territory.1
Part VIII of the constitution from article 239-245 talks about administration of UTs. Some
provisions expressly stated the powers of LG on some matters but there is confusion when
subject matters are not mentioned and courts have to interpret in order to find out whether
subject matter would fall under COM or LG. Though it is governed by central government
through administrator but it also has legislative assembly and members are directly appointed
by people. Now the issue is whether LG have to act on the aid and advice of COM as in state
or every decision taken by COM must have confirmation by LG. Powers of the LG are not
defined anywhere in the constitutional expressly.
1 Para 40, Govt. Of NCT of Delhi v UOI, (2016) SCC( online) 4308

Delhi is governed by both central government through administrator and by Council of


ministers. There is no clear demarcation of powers of COM or of LG. It has legislative
assembly like semi-state. Central government is not ready to leave Delhi and let it become a
state. Central government is not read to give up the authority of Delhi and holding it as some
promise. However, there is enough justification for the over- possessiveness of the
government of India towards Delhi's governance as it is not just a union territory or a state
but is the National Capital. The need for the overwhelming control of the central government
in the diplomatic and security issues of the National Capital can never be undermined. As a
consequence several federal countries typically created a small, separate entity as the
National Capital region. The District of Columbia (US), Canberra (Australia) and Brasilia
(Brazil) are example.2 On the other hand one cannot deprive the residents of the National
Capital region of electing their own government as in other states. Several committees and
commissions have been constituted since independence to arrive at an optimum structure of
governing Delhi. The question that arises at this juncture is whether Delhi could be granted
complete statehood.3
Before proceeding to discuss this issue one needs to be very clear as to what is the present
status of the Government of National Capital Territory of Delhi (GNCTD). Is it a union
territory with a special status or a state with limited powers or a peculiar governance structure
unique in character?

History of making Delhi as UT with special status


On 31/7/1947, during the incipient stages of the framing of the Constitution, a Committee
under the Chairmanship of Dr B. Pattabhi Sitaramayya was established to study and report on
the constitutional changes required in the administrative structure existing in the Chief
Commissioners provinces to give to the people of these provinces a due place in the
democratic governance of free India. After the recommendations of this Committee were
sanctioned by the Drafting Committee, they placed before the Constituent Assembly for its
consideration.
The Constituent Assembly considered all aspects of the issue with a view to providing an
appropriate administration for what were called Part C States, which included three former
2 The Economic Times, September 6, 2002
3 Soumen Bagchi. Governance in Delhi: Too Many Cooks. EPW

Chief Commissioner's Provinces Delhi, Ajmer and Coorg and some erstwhile Indian States
which were retained as centrally administered areas after their merger with India. It was
decided that the decision whether these territories should have legislatures and Councils of
Ministers ought to be left to Parliament and, for this purpose, an enabling provision should be
incorporated within the Constitution. It was also provided that these Part C States would be
administered by the President, acting to such extent as he thought fit, through a Chief
Commissioner or a Lieutenant Governor to be appointed by him, or through the Governor of
a neighbouring State, subject to certain procedural requirements. Accordingly, Articles 239
and 240 were inserted in the final draft of the Constitution.
The States Reorganisation Commission which was set up in December 1953, while
studying the working of the units of the Union, took up the functioning of the Part C States
for examination as an independent topic. In its Report, submitted in 1955, the Commission
expressed the view that Part C States were neither financially viable nor functionally
efficient, and recommended that each of them should either be amalgamated with the
neighbouring States or made a centrally administered territory.
Substantial changes were made by the Constitution (Seventh Amendment) Act, 1956 which
incorporated the recommendations of the States Reorganisation Commission and was to have
effect in concert with the States Reorganisation Act, 1956. The four categories of States that
existed prior to these Acts were reduced to two categories. The first of these categories
comprised one class, called "States", the second category comprised the areas which had
earlier been included in Part C and Part D States These areas were called "Union Territories"

Balakrishnan committee report


The question of reorganisation of the Administrative setup in the Union territory of Delhi has
been under the consideration of the Government for some time. The Government of India
appointed on 24/12/1987 a Committee to go into the various issues connected with the
administration of Delhi and to recommend measures inter alia for the streamlining of the
administrative setup. The Committee went into the matter in great detail and considered the
issues after holding discussions with various individuals, associations, political parties and
other experts and taking into account the arrangements in the national Capitals of other
countries with a federal setup and also the debates in the Constituent Assembly as also the
reports by earlier Committees and Commissions.

The Committee submitted its report on 14th December 1989 after many considerations to
make Delhi as union territory and provided with legislative assembly and a COM rest
concern to the common man. Like a full-fledged states, Delhi has a legislature and a COM
with a chief minister at the head, the legislative and executive powers in respect of public
order, police and land and matters related thereto have been retained by the union to be
handled through the LG.4
The Committee also recommended that with a view to ensure stability and permanence the
arrangements should be incorporated in the Constitution to give the National Capital a special
status among the Union territories.
On the basis of the recommendations of the Balakrishnan Committee, the 69 th amendment to
the Constitution of India upgraded the status of the GNCTD to its present form. The
amendment received the president's assent on December 21, 1991 and came into force on
February 1, 1992. Section 2 of the Constitution Amendment passed by the parliament inserted
two new Articles 239AA and 239AB.5
Some clue as to the reasons for the recent amendments in Part VIII may be found in the
observations of Court in Ramesh Birch case6, which we have extracted earlier. It is possible
that since Parliament may not have enough time at its disposal to enact entire volumes of
legislations for certain Union Territories, it may decide, at least in respect of those Union
Territories whose importance is enhanced on account of the size of their territories and their
geographical location, that they should be given more autonomy in legislative matters.
However, these changes will not have the effect of making such Union Territories as
independent as the States. This point is best illustrated by referring to the case of the National
Capital Territory of Delhi which is today a Union Territory and enjoys the maximum
autonomy on account of the fact that it has a legislature created by the Constitution.
LEGISLATIONS REGARDING ADMINISTRATION OF NCT OF DELHI
1. CONSTITUION OF INDIA:
4 Page no. 1579, Dr. Subhash C. Kashayap, Constitutional Law of India
5 Soumen Bagchi. Governance in Delhi: Too Many Cooks. EPW 38.46.2003
6 1989 Supp (1) SCC 430

Article 239: Article 239 of the Indian constitution which was added by 7 th constitutional
amendment 1956 stated about the administration of union territories. It stated that
administration of UTs is under authority of president to the extent he think fit and for this
purpose an administrator is appointed by president. Though the Union Territories are
centrally administered under the provisions of Article 239 they do not become merged with
the Central Government.7 They are centrally administered but they retain their independent
entity.8 He may appoint governor of state as administrator for adjoining union territory and
this governor will exercise his power independently of his council of minister. The
administrator of a UT is not a constitutional functionary like the governor of a state and is not
bound to act on the advice of his COM, even in matters where he is not required to act in his
discretion by or under the constitution.9
Administrator of the union territory of Delhi derived only such powers, functions and duties
as were entrusted to him by the president under article 239(1).10 Mere nearness to the seat of
the central government does not clothe the LG with any power in respect of the property of
the Central government. He can discharge only those powers which are entrusted to him by
the constitution and the laws.11
In New Delhi Municipal Committee v State of Punjab 12 it was stated that, President, who is
the executive head of a Union Territory does not function as the head of the Central
Government, but as the head of the Union Territory under powers specially vested in him
under Article 239 of the Constitution thereby occupying a position analogous to that of a
Governor in a State.
7 Satya Dev Bushahri vs. Padam Dev & Ors., AIR 1954 SC 587
8 Page no. 2817, Jagdish Swarup, Constitution of India, Dr. L .M. Singhvi, 3 rd ed.
Volume 2
9 Page no. 2817, Jagdish Swarup, Constitution of India, Dr. L .M. Singhvi, 3 rd ed.
Volume 2
10 Express newspaper Pvt. Ltd v UOI; (1986) 1 SCC 133

11 Supra
12 (1997) 7 SCC 339

Article 239-AA-: After recommending by Balakrishnan Committee Report by 69 th


constitutional amendment act, 1991, articles 239 AA and 239AB were added to the Indian
Constitution.
According to the article 239-AA, the union Territory of Delhi has now been named as the
National Capital Territory of Delhi and administrator thereof shall be designated as the
Lieutenant Governor. As per clause (2) of Article 239AA, 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. Clause (2) further provides that the functioning of the Legislative Assembly shall
be regulated by law made by Parliament. Clause (3) of Article 239AA is an important
provision which confers the Legislative Assembly of National Capital Territory with the
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 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. It has also been made clear that the powers so
conferred on the Legislative Assembly of National Capital Territory to make laws is not in
derogation of the powers of Parliament under the Constitution to make laws with respect to
any matter for a Union Territory or any part thereof. In case of any repugnancy between the
law made by the Legislative Assembly and the law made by the Parliament, the law made by
the Parliament shall prevail and the law made by the Legislative Assembly to the extent of
repugnancy shall be void except where the law made by the Legislative Assembly has been
reserved for consideration of the President and has received his assent.
Clause (4) of Article 239AA further provides that there shall be a Council of Ministers with
the Chief Minister at the head 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 except in so far as he is required by law to act in his discretion. The proviso to
Clause (4) made it clear that in case of difference of opinion between the Lt. Governor and
his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and
act according to the decision given thereon by the President and pending such decision, Lt.
Governor is competent to take action or to give direction as he deems necessary, in case the
matter is so urgent that it is necessary for him to take immediate action.
Clause (7)(a) of Article 239AA provided that the Parliament may by law make such
provisions for giving effect to, or supplementing the provisions contained therein. In terms

thereof, Government of NCTD Act, 1991 has been enacted by the Parliament which has come
into force on 01.02.1992. In exercise of the power conferred by Section 44 of the said Act,
the President of India made Rules which provide in detail for the procedure for the exercise
of functions under clause (4) of Article 239AA.13
The governance of Delhi and hence the status of GNCTD have remained significantly
different from the governance of other states and the status of other state governments. Other
state governments have exclusive jurisdiction on the State List. However, GNCTD does not
have any control over public order, police and land. The local governance and the
development authorities remain within state jurisdiction. However, GNCTD does not have
any say on administrative issues of Municipal Corporation of Delhi (MCD), Delhi
Development Authority (DDA) and New Delhi Municipal Council (NDMC). The central
government shares taxes with the state governments as per the provisions in the Constitution
and the recommendations of the Central Finance Commission. GNCTD, however, receives
grants from the government of India. GNCTD is not allowed to borrow from any other
sources barring the government of India. Generally, the decision of the state legislative
assembly is final for the introduction a bill in a state. However, GNCTD cannot introduce any
bill without the consent of the lieutenant governor. It is the responsibility of the state
governments to appoint chief secretary, police commissioners and municipal commissioners
of various municipal corporations. However, the government of India appoints the chief
secretary of the GNCTD, commissioner of Delhi Police and commissioner of the municipal
corporation of Delhi. 14
Legislative assembly of Delhi is the legislation created by the constitution and it is different
from the legislative constituted by the parliament under 239A for UTs created by the act.
However, it is to be noted that all the Union Territories do not have the same status. As the
position stands at the present moment, the Union Territories can be divided into three
categories:

13 Page no. 2822, Jagdish Swarup, Constitution of India, Dr. L .M. Singhvi, 3 rd ed.
Volume 2
14 Soumen Bagchi. Governance in Delhi: Too Many Cooks. EPW 38.46. (2003)

(i) Union Territories without legislatures comprising Andaman & Nicobar, Lakshadweep,
Dadra & Nagar Haveli, Daman & Diu and Chandigarh.
(ii) Union Territories for which legislatures have been established by Acts of Parliament
under Article 239A Pondicherry is the sole occupant of this category.
(iii) Union Territories which have legislatures created by the Constitution (Articles 239AA
and 239AB) The National Capital Territory of Delhi is the sole occupant of this category.
GOVERNMENT OF NATIONAL CAPITAL OF DELHI ACT, 1991
This act was enacted to implement the 69th constitutional amendment.
Section 41 of the GNCTD Act, 1991 gives power to LG to act in his discretion in the matter
on which legislature has no power to make laws and LG has delegated authority to do so by
the president. Final decision would be of LG to decide whether matter is under the discretion
of LG or not.
Section 44 of the GNCTD Act, 1991, Conduct of business: president shall make rules for
allocation of business to the minister with respect to the matter on which LG is required to act
on the aid and advice of his COM. All executive function whether taken by LG in his
discretion or by aid and advice of COM will be taken in his own name.
Under section 45 of the act, chief minister has duty to communicate all decision relating to
the administration of the affairs of the capital taken by the COM to the LG.
However, the administrator is competent to exercise all powers vested in him by the
Government of NCT of Delhi Act, 1991. The administrator functions as a delegate of the
president and will have to act under the orders of the president, that is, the central
governments.15
TRANSACTION OF BUSINESS RULES, 1993
In exercise of the powers conferred by section 44 of the GNCTD Act, 1991, the president has
made several rules under transaction of business rules act, 1991. These rules talks about LG
power to transfer matter to president for his reference if there is no consensus of the opinion
by LG and COM.
15 GNCTD v All India Central Civil Accounts, Jaos Association and others, (2002) 1 SCC 344

CASE:
1. Govt. of National Capital Territory v UOI16
In this landmark judgement relating to the exercise of legislative powers and executive
powers control in the administration of National Capital Territory of Delhi, it was held by the
Delhi High Court that the LG is the administrative head of the NCTD and he is not bound to
act only on the aid and advice of the COMs in relation to matters in respect of which power
to make laws is conferred on the legislative assembly of Delhi. The Court also held that every
decision taken by the COM shall be communicated to the LG for his views and the orders in
terms of the decision of the COM can be issued only where no reference to the central
government is required as provided under chapter V of the transaction of business rules.
In this case the issue has risen about the power of legislative assembly and its executive
control of administration of National Capital of Delhi. Writ petitions were filed from both the
sides. Government of NCT of Delhi opposed the notifications dated 21.05.2015 and 23.07.
2014 issued by Government of India, Ministry of Home Affairs which empowered the LG to
exercise the power in respect of matters connected with services and directing the ACB
police station not to take cognizance of offences against officials of central government.
Petitions filed by UOI challenged orders passed by government of NCT of Delhi on the
common ground that they are passed without placing the decision of the COM before LG for
his views so they would be illegal and unconstitutional. Government of NCT of Delhi also
challenged the appointment of a special public prosecutor by the LG as LG is not empowered
under the constitution scheme of article 239AA, provisions of the Government of NCT of
Delhi Act, 1991 and rules made thereunder to appoint or interfere with the appointment made
by the GNCTD.
After referring to the argument form both the sides Delhi High Court gave its decision which
says that it is mandatory under the constitutional scheme to communicate the decision of the
COM to the LG even in relation to the matters in respect of which powers to make laws have
been conferred on the legislative assembly of the NCTD under clause (3) (a) of article 239AA
of the constitution and an order thereon can be issued only where the LG does not take a
different view and no reference to the central government is required in terms to clause (4) of
16 2016 SCC Online Del 4308

article 239-AA of the constitution read with chapter V of the transaction of business of the
government of NCT of Delhi rules, 1993. Court held that notification issued by the
Directorate of Vigilance, Government of NCT of Delhi under section 3 of the commission of
Inquiry Act, 1952 appointing the commission of inquiry for inquiring into all aspects of the
award of work related to grant of CNG fitness certificates in the transport Department,
government of NCT of Delhi and also appointing the commission of inquiry to inquire into
allegation regarding irregularities in the functioning of Delhi and District Cricket Association
is also declared as illegal since the same was issued without seeking the views/concurrence of
the LG as provided under Rule 10 and Rule 23 read with chapter 5 of the Transaction of
business Rules, 1993. Since court made notifications by the Government of NCT of Delhi as
illegal on the ground that they are issued without seeking the views/ concurrence of the LG of
NCT of Delhi as required under constitutional scheme, this shows that it is necessary to seek
advice of LG before issuing any order and it would be considered as passed if LG does not
take any contrary views. These decisions of court are in favour of UOI which makes central
government authoritative body of GNCTD. Any notification cannot be passed if it is
inconsistence with the legislative assembly.
High Court also held that the matters connected with the services falls outside the purview
of the legislative Assembly of NCT of Delhi. Therefore, the direction in the notification that
the LG of the NCT of Delhi shall in respect of matters connected with services exercise the
powers and discharge the functions of the central government to the extent delegated to him
from time to time by the president is neither illegal nor unconstitutional. Here services
would mean services under Entry 41 of state list which includes state public service and
state public service commission. Reason for issuing such notification which gives power to
LG to deal with matters related services: there are two type of services union and state. As
Delhi is not state17 but union territory and there is no separate service cadre of any union
territory. Therefore, the services under NCT of Delhi are necessarily the service of union.
Thus service would fall under the qualified category as contemplated in article 239AA (3)
(a). Hence notification which directs the LG to exercise the power and discharge the function
related with the matter connected with the services cannot be held to be illegal and
unconstitutional.18
17 Inder Pal Singh Chadha v Government of NCT of Delhi 1996 SCConline Del 697, Ram
Aggarwal v UOI 2002 SCC online del 669
18 Para 161, Govt. of NCT of Delhi v UOI

On the issue where GNCTD challenged the notification issued by UOI, ministry of Home
Affairs where it was directed that Anti-corruption Branch shall not take cognizance of offence
against the officers and employees of the central government. Contentions of the GNCTD are
that matters related with Entry 1 (criminal Law) and entry 2 (criminal procedure) of list III is
with the legislative assembly of the NCTD under article 239 AA (3) and jurisdiction of ACB
to the officers and employees of GNCTD are arbitrary, illegal and violates of article 14 and
239AA of the constitution. But court held that the direction in the notification that the anticorruption Branch Police Station shall not take any cognizance of offence against officers,
employees and functionaries of the central government is in accordance with the
constitutional scheme and warrants no interference since the power is traceable to Entry 2
(police) of list II of 7 th schedule to the constitution in respect of which the legislative
assembly of NCTD has no power to make laws.19
It was also held by the high court that LG is not bound to act only on the aid and advice of the
COM under clause 4 of article 239AA in relation to the matters in respect of which the
powers to make laws has been conferred on the legislative assembly of NCT of Delhi under
clause (3) (a) of the article 239 AA of the constitution. 20 This decision of court overruled the
decisions rendered by this court in case Om Prakash Pahwa v state of Delhi.21
It was held that position of LG is not similar to governor of the state. 22 The discretion
conferred on the Lt. Governor under the Proviso to Article 239AA(4) to refer the matter to
the President in case of a difference of opinion between the Chief Minister and Lt. Governor
is not available under Article 163. Therefore, the scope of aid and advice under Article
239AA(4) is not comparable to the scope of aid and advice received by the Governor of State
under Article 163 of the Constitution, but it is analogous to Section 44(1) of the Government
of Union Territories Act, 1963.
In the issue related with the appointment of special public prosecutor, court held that LG of
NCT of Delhi is competent to appoint the special public prosecutor under section 24(8) Cr.

19 Para 208, Govt. of NCT of Delhi v UOI


20 Para 100, GNCTD V UOI
21 (1998) 46 DRJ 719, Omprakash Pahwa v state of Delhi
22 Para 104 GNCTD V UOI

P.C., such power has to be exercised on the aid and advice of the council of ministers in terms
of clause (4) of article 239-AA of the constitution.
Court held that on a reading of article 239 and article 239-AA of the constitution together
with the provisions of the government of National Capital Territory of Delhi Act, 1991and
transaction of business of the Government of NCT of Delhi rules, 1993, it becomes manifest
that Delhi continues to be a UT even after the constitutional (69th amendment) act, 1991
inserting article 239-AA making special provisions with respect of Delhi. Article 239 is still
applicable to NCT of Delhi even after insertion of article 239-AA.
CONCLUSION
In a setback to the AAP governments campaign for full statehood to Delhi, the Delhi High
Court ruled that the Capital continues to be a Union Territory under the administrative
control of the Lt Governor and does not acquire the status of a State. This special status to
Delhi was given by 69th constitutional amendment act which added article 239AA and
239AB. These articles make Delhi national capital with legislative assembly. There is clear
cut demarcation of power between legislative assembly of NCT of Delhi and union which
administered the UT through administrator. But in this case we can see that legislative and
executive powers of legislative assembly and powers of LG can be derived by interpretation.
Legislative assembly of NCT of Delhi does not have absolute power on all matters which are
provided under article 239AA (3) but it is subject to judicial interpretation as we have seen in
this case that matter related with service, DDA is under the LG.

Delhi High Court reiterated the judgment of SC in NDMC V. State of Punjab 23 that Delhi
continue to be Union territory and does not acquire the status of State. SC stated in Para. 152
In the year 1991, the Constitution did provide for a legislature for the Union Territory of
Delhi [National Capital Territory of Delhi] by the Sixty Ninth (Amendment) Act (Article
239AA) but even here the legislature so created was not a full-fledged legislature nor did it
have the effect of assuming that it could lift the National Capital Territory of Delhi from
Union Territory category to the category of States within the meaning of Chapter I of Part XI
of the Constitution.
23 (1997) 7 SCC 339

Delhi, being the capital of India, always had a unique governance structure compared to other
cities in India. There has been substantial evolution of administrative and governance structures
in last 60 years. However, Delhi still retains the status of a Union Territory with Legislative
Assembly. The critical subjects of law & order, public order and land are still under the domain of
the Central Government. These unique governance structures in Delhi arise from the fact that
Delhi is the national capital and the Central Government needs to have oversight on
administration in the capital. 24

Several important national and international institutions like the President, the Parliament, the
Supreme Court, etc., as well as all foreign diplomatic missions, international agencies, Head
of the State, National Legislature, National Executive, Heads of Armed Forces, Para Military
Forces, Foreign Diplomatic Missions, International Organizations, Important Educational,
Medical and Cultural Centres, etc. It reflects the ethnic cultural and socio political diversity
of the country and acts as a window for the rest of the world etc. are located in Delhi. It is
also a place to which high dignitaries from other nations pay official visits frequently and it is
in the national interest that the highest possible standards should be maintained in the
administration of the National Capital. It is also in the national interest that the Centre should
have control over the National Capital in all matters irrespective of whether they are in the
State field or Union field.
Reason for keeping Delhi as Union territory is that it is National Capital of India and if it has
been given the status of full- flagged state then there will be a constitutional division of
sovereign, legislative and executive powers between the union and the state of Delhi. One of
the consequences will be that in respect of matters in the state list, parliament will have no
power on jurisdiction to make any law except in the special and emergency situation provided
for the under the constitution and to that extent the union executive cannot exercise executive
power or functions. The Constitutional prohibition on the exercise of powers and functions
will make it virtually impossible for the Union to discharge its special responsibilities in
relation to the national capital as well as to the nation itself. Delhi being a national capital of
India has special features and it is needed to be under the control of union government. Such
control of union government is vital irrespective of whether the subject matter is in the state
list or union list.25 Reason given in the against of making Delhi a state of Union territory is
24 Standing Committee Report on NDMC ( New Delhi Municipal Council).

25 69th Constitutional Amendment Act, 1991

somewhere very substantial because if it has been given the status of a state then it sooner or
later acquire a predominant position in relation to other States because Delhi as the national
capital belongs to the nation as a whole.
But on the basis of its national capital status we cannot compromise with the democratic
principle which is very fundamental in our constitutions. We cannot make Delhi under the
full authority central government without legislative assembly as it would be deprivation of
Delhi Public from selecting their own government. But this structure of NCT of Delhi is
problematic when different political parties are governing at union and legislative assembly
level. Even if the constitution of India provided with the power of legislative assembly and
union there will always be controversy. This structure is more problematic in present situation
because political parties are focusing to defame other party instead of making development.
This differentiation between union and legislative assembly of NCT of Delhi will be a very
important factor in the development of Delhi. If parties at both level do not agreeing with
each other then it will hamper with the development.
Delhi can never be provided the status of a complete state particularly due to the union
government's national and international commitments, duties and responsibilities towards the
National Capital. However, the existence of an elected assembly has made all the difference.26
Delhi High court also held that that every decision taken by the Council of Ministers shall be
communicated to the Lt. Governor for his views and the orders in terms of the decision of the
Council of Ministers can be issued only where no reference to the Central Government is
required as provided in Chapter 5 of the Transaction of Business Rules. This shows that union
parliament is the sole authority which can decide any matter related with the Union territory
of NCT of Delhi. Though article 239AA (2) (a) stated that there shall be legislative assembly
for national capital territory but if each and every decision of legislative matter on which sole
power is of legislative assembly to make law will be referred to union government for its
approval then there will be no use of having legislative assembly which cannot decide on its
own. In this way Union Territory of NCT of Delhi is under the control of union and
legislative assembly is only to give the satisfaction of democracy set-up.
With this set-up of NCT of Delhi, one thing is certain that the worst sufferers are the residents
of Delhi. The large number of institutions operating in the National Capital Territory of Delhi
often with overlapping responsibilities makes life miserable for the citizens. For example the
total area of 1,483 sq. km under the jurisdiction of GNCTD is divided into nine revenue
26 The Times of India, September 7, 2002

districts for the administrative purposes. The same area being within the jurisdiction of DDA
is divided into 15 planning zones. Further MCD divides the total area of 1,397 sq. km into 12
zones for its administrative ease. The rest of GNCTD's area belongs to the NDMC (42.74 sq.
km) and the Cantonment Board (42.97 sq. km). The multiplicity of agencies responsible for
similar purposes but accountable to different levels of government in Delhi has further
aggravated the problems. Unlike in other states, the MCD and the NDMC are responsible to
the ministry of urban development and poverty alleviation (MoUDPA), GoI. Moreover, the
DDA is also responsible to the MoUDPA. The Delhi Police responsible for law and order
situation in the territory is also responsible to the ministry of home affairs (MoHA), GoI. On
the other hand Delhi Jal Board (DJB), Delhi Vidyut Board and Delhi Transport Corporation
are responsible to the respective departments of GNCTD.27
These differences in the governance of Delhi have far reaching implications. For example, the
Delhi State Industrial Development Corporation (DSIDC) which is responsible to the
GNCTD has the authority to issue licence for industries. However, it would need a separate
permit from the DDA, responsible to MoUDPA, GoI for the land. Many of the initiatives of
the DDA and the MCD that have adverse financial and environmental implications directly
affect the GNCTD. Situations are very common where GNCTD is neither consulted, nor its
approval sought before major decisions are taken. However, to avert the adverse
consequences, if any, is often the responsibility of the GNCTD.
But if decision has been taken to abolish the GNCTD and empower the MCD substantially in
accordance with the essence of decentralisation and enable it to undertake the activities of the
GNCTD. The fresh layer of ministers of the GNCTD serves no public purpose in Delhi's
context.

28

The MCD in such a situation should continue to be responsible to the MoUDPA,

Gol. However, a local body accountable to the national government would over- look the
basic requirements of the citizens, as the national government remains more concerned with
the macro objectives of economic stability and national security.29
In such a situation it seems the optimum solution would be to continue with the present
structure of GNCTD with minor amendments. There should be balance between the powers
of central government and legislative assembly of union. Central government should continue
27 Soumen Bagchi. Governance in Delhi: Too Many Cooks. EPW 38.46. (2003)
28 The Economic Times, September 6, 2002
29 Soumen Bagchi. Governance in Delhi: Too Many Cooks. EPW 38.46. (2003

with jurisdiction on police, land & public and it should also be empowered to matters with
have national importance and others matters which are for the local working for ex.
responsibility of providing utility services like water supply, sewerage, electricity and
transport should continue to remain the responsibility of the GNCTD as it is now.
Also it should not be compulsory for the legislative assembly to refer each and every matter
because it will obstruct the developments in case if there are different parties at centre and
legislative assembly level. But any matter decided by legislative assembly of NCT of Delhi
should not be in consistent with the central government.
Delhi being a national capital has national importance so authoritative power to decide on any
matter should be with central government.
Also in case of national capital of Australia Northern Territory Legislative Assembly, the
Australian Capital Territory Legislative Assembly lacks the full powers of a state legislature.
For example, legislation passed by the Assembly can still be overridden by Australian
Commonwealth legislation under the Territories Self-Government Legislation Amendment
(Disallowance and Amendment of Laws) Bill 2011.

BIBLIOGRAPHY

Primary Sources
1. The constitutional of India, 1950
2. The transaction of business rules, 1993
3. Government of NCT of Delhi Act, 1991
Secondary sources
1. The constitutional of India, Jagdish Swarup
2. Article by Soumen bagchi : Governance in Delhi: too many cooks
3. The constitution of India, M.P.Jain

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