Date of the Judgment: February 14, 2019
Judges: A.K. Sikri, J. and Ashok Bhushan, J.
Can the Delhi government control its own services, or does that power reside with the Lieutenant Governor? The Supreme Court addressed this critical question, among others, in a recent judgment, clarifying the powers and responsibilities of the Government of the National Capital Territory of Delhi (GNCTD) and the Lieutenant Governor (LG). This case has significant implications for the governance of Delhi, especially concerning the control over services, anti-corruption efforts, and other key areas.
Case Background
This case arose from a batch of appeals against a judgment by the High Court of Delhi, concerning the powers of the GNCTD vis-à-vis the Lieutenant Governor. The core issue was the interpretation of Article 239AA of the Constitution, which provides special provisions for Delhi. Several notifications and orders issued by the Government of India and the GNCTD were challenged. These included notifications related to the control of services, the jurisdiction of the Anti-Corruption Bureau (ACB), and the appointment of public prosecutors.
Timeline
| Date | Event |
|---|---|
| August 04, 2016 | High Court of Delhi judgment on writ petitions |
| July 04, 2018 | Constitution Bench judgment on Article 239AA |
| May 21, 2015 | Government of India notification on Lieutenant Governor’s powers over services |
| July 23, 2014 | Government of India notification limiting ACB jurisdiction |
| August 04, 2015 | GNCTD notification revising agricultural land rates |
| September 24, 1998 | Notification regarding powers of Lieutenant Governor in respect of ‘Public Order’, ‘Police’ and ‘Services’ |
| November 08, 1993 | Notification declaring ACB as a police station for offences under the Prevention of Corruption Act, 1988 |
| August 01, 1986 | Notification declaring ACB as a Police Station |
| March 20, 1974 | Notification empowering Administrators of Union Territories to exercise powers under Cr.P.C |
Course of Proceedings
The High Court of Delhi addressed several writ petitions questioning the validity of various notifications and orders. The High Court held that since NCTD remains a Union Territory, the President, through the Lieutenant Governor, enjoys overlapping powers. The Division Bench of the Supreme Court, recognizing the constitutional importance of the issues, referred the matter to a Constitution Bench. The Constitution Bench provided answers to the various nuances of the issues, and the appeals were then listed before this Regular Bench for a decision on their merits.
Legal Framework
The judgment primarily interprets Articles 239 and 239AA of the Constitution of India. Article 239 deals with the administration of Union Territories, stating that they are to be administered by the President through an administrator. Article 239AA provides special provisions for Delhi, designating it as the National Capital Territory and establishing a Legislative Assembly and a Council of Ministers.
Key legal provisions include:
- Article 239 of the Constitution of India: “Administration of Union territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.”
- Article 239AA of the Constitution of India: “Special provisions with respect to Delhi.—(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor.”
- Section 2(s) of the Code of Criminal Procedure, 1973: Defines a “police station.”
- Section 2(a) of the Commissions of Inquiry Act, 1952: Defines “appropriate government.”
- Section 108 of the Electricity Act, 2003: Empowers State Governments to give directions to the State Electricity Regulatory Commission.
- Section 12 of the Delhi Electricity Reforms Act, 2000: Empowers the Government to issue policy directions to the Delhi Electricity Regulatory Commission.
- Section 27(3) of the Indian Stamp Act, 1899: Allows the government to notify minimum rates for land valuation.
- Section 24 of the Code of Criminal Procedure, 1973: Deals with the appointment of Public Prosecutors.
The Court also considered the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business Rules, 1993.
Arguments
The GNCTD argued that it has the power to govern, with the Legislative Assembly having the authority to make laws on matters in the State and Concurrent Lists, except for Entries 1, 2, and 18 of the State List. It also argued that the executive power of the GNCTD is co-extensive with its legislative power, extending to all subjects except those specifically excluded. The GNCTD contended that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers in all matters, except where he is permitted to exercise his own discretion.
The Union of India argued that NCTD remains a Union Territory, and the President, through the Lieutenant Governor, has overriding executive powers. It submitted that the executive power of the GNCTD is not exclusive and is subject to the control of the Union. The Union relied on Article 239 and the proviso to Article 239AA(4) to assert its powers.
The Union of India further argued that the term “State Government” in Section 2(s) of the Cr.P.C. and other relevant provisions means the Central Government in respect of Union Territories. They also argued that the power to appoint Special Public Prosecutors lies with the Lieutenant Governor and not the GNCTD.
The following table demonstrates the sub-submissions categorized by main submissions of all sides pertaining to the issue:
| Main Submission | Sub-Submissions of GNCTD | Sub-Submissions of Union of India |
|---|---|---|
| Powers over Services |
|
|
| Jurisdiction of ACB |
|
|
| Commission of Inquiry Act |
|
|
| Electricity Act |
|
|
| Revision of Circle Rates |
|
|
| Appointment of Special Public Prosecutors |
|
|
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the exclusion of ‘Services’ from the legislative and executive domain of the NCTD is unconstitutional.
- Whether the exclusion of the jurisdiction of the ACB to investigate offenses against Central Government officials is legal.
- Whether the GNCTD is an ‘Appropriate Government’ under the COI Act.
- Whether the power to issue directions to the State Commission under the Electricity Act lies with the GNCTD.
- Whether the orders of the GNCTD nominating Directors to Distribution Companies are valid without the Lieutenant Governor’s concurrence.
- Whether the GNCTD has the power to revise minimum rates of agricultural land.
- Whether the Lieutenant Governor or the GNCTD has the power to appoint Special Public Prosecutors.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision | Brief Reason |
|---|---|---|
| Powers over Services | Notification of May 21, 2015 upheld with modifications. | Entry 41 of List II not applicable to Union Territories. A mechanism for posting and transfer of officers of different ranks was laid down. |
| Jurisdiction of ACB | Notifications of July 23, 2014 and May 21, 2015 upheld. | Central Government has power to demarcate jurisdiction between CBI and ACB. |
| Commission of Inquiry Act | GNCTD is not an ‘Appropriate Government’ under COI Act. | ‘State Government’ in COI Act does not include Union Territory. |
| Electricity Act | GNCTD has power to issue directions to DERC. | DER Act is a State enactment, and LG has to act on the aid and advice of the Council of Ministers. |
| Nomination of Directors | GNCTD has power to nominate directors. | DER Act is a State enactment, and LG has to act on the aid and advice of the Council of Ministers. |
| Revision of Circle Rates | GNCTD has power to revise circle rates, but LG’s views are to be taken. | Circle rates relate to stamp duty, not land, but LG’s views are necessary. |
| Appointment of Special Public Prosecutors | GNCTD has power to appoint Special Public Prosecutors. | Lieutenant Governor has to act on the aid and advice of the Council of Ministers. |
Authorities
The Court considered the following cases and legal provisions:
| Authority | Court | How Considered | Legal Point |
|---|---|---|---|
| Shamsher Singh v. State of Punjab, (1974) 2 SCC 831 | Supreme Court of India | Referred to | Powers of the Governor |
| Union of India and others v. Surinder S. | Supreme Court of India | Referred to | Interpretation of Article 239 |
| Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222 | Supreme Court of India | Referred to | Role and functions of an Administrator |
| NDMC v. State of Punjab, (1997) 7 SCC 339 | Supreme Court of India | Referred to | Status of NCTD |
| Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab, AIR 1955 SC 549 | Supreme Court of India | Referred to | Executive power of the government |
| Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 | Supreme Court of India | Referred to | Criminal Procedure |
| Union of India v. Prem Kumar Jain and Others, (1976) 3 SCC 743 | Supreme Court of India | Referred to | Definition of “State” |
| Goa Sampling Employees’ Association v. General Superintendence Co. of India, (1985) 1 SCC 206 | Supreme Court of India | Referred to | Definition of “State Government” in Union Territories |
| State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru, (2005) 11 SCC 600 | Supreme Court of India | Referred to | Competency of Lieutenant Governor to accord sanction for prosecution |
| Stainislaus v. State of Madhya Pradesh and Others, (1977) 1 SCC 677 | Supreme Court of India | Referred to | Definition of Public Order |
| Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Others, (2010) 5 SCC 246 | Supreme Court of India | Referred to | Definition of Public Order |
| Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly & Ors., (2016) 8 SCC 1139 | Supreme Court of India | Referred to | Discretionary power of the Governor |
| State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal & Ors., (2004) 5 SCC 155 | Supreme Court of India | Referred to | Interpretation of entries in the Seventh Schedule |
| Bir Singh v. Delhi Jal Board and Others, (2018) 10 SCC 312 | Supreme Court of India | Referred to | Nature of services in the Union Territories |
Judgment
The Supreme Court analyzed each issue based on the interpretation of Article 239AA and other relevant provisions. The Court upheld the notification regarding the Lieutenant Governor’s powers over services, but with modifications. It also upheld the notifications limiting the jurisdiction of the ACB. The Court held that the GNCTD is not the ‘appropriate government’ under the COI Act but has the power to issue directions to the DERC. The Court also held that the GNCTD has power to revise circle rates, but the LG’s views are necessary. The Court held that the GNCTD has the power to appoint Special Public Prosecutors, with the Lieutenant Governor acting on the aid and advice of the Council of Ministers.
The following table summarises how each submission made by the parties was treated by the Court:
| Submission | How Treated by the Court |
|---|---|
| GNCTD has executive power over services. | Partially accepted. GNCTD has power for postings, but Central Government controls the cadre. |
| ACB has jurisdiction over all officials in Delhi. | Rejected. Central Government has power to limit ACB’s jurisdiction. |
| GNCTD is an “Appropriate Government” under COI Act. | Rejected. Central Government is the “Appropriate Government”. |
| GNCTD has power to issue directions to DERC. | Accepted. GNCTD has power under the DER Act. |
| GNCTD has power to nominate Directors to Distribution Companies. | Accepted. GNCTD has power under the DER Act. |
| GNCTD has power to revise circle rates. | Accepted, but LG’s views are necessary. |
| GNCTD has power to appoint Special Public Prosecutors. | Accepted. Lieutenant Governor has to act on the aid and advice of the Council of Ministers. |
The following table summarises how each authority cited was viewed by the Court:
| Authority | How Viewed by the Court |
|---|---|
| Shamsher Singh v. State of Punjab, (1974) 2 SCC 831 | Referred to for understanding the powers of the Governor |
| Union of India and others v. Surinder S. | Referred to for interpreting Article 239 |
| Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222 | Referred to for understanding the role and functions of an Administrator |
| NDMC v. State of Punjab, (1997) 7 SCC 339 | Referred to for understanding the status of NCTD |
| Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab, AIR 1955 SC 549 | Referred to for understanding the executive power of the government |
| Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 | Referred to for understanding the scope of Criminal Procedure |
| Union of India v. Prem Kumar Jain and Others, (1976) 3 SCC 743 | Referred to for understanding the definition of “State” |
| Goa Sampling Employees’ Association v. General Superintendence Co. of India, (1985) 1 SCC 206 | Referred to for understanding the definition of “State Government” in Union Territories |
| State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru, (2005) 11 SCC 600 | Referred to for understanding the competency of Lieutenant Governor to accord sanction for prosecution |
| Stainislaus v. State of Madhya Pradesh and Others, (1977) 1 SCC 677 | Referred to for understanding the definition of Public Order |
| Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Others, (2010) 5 SCC 246 | Referred to for understanding the definition of Public Order |
| Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly & Ors., (2016) 8 SCC 1139 | Referred to for understanding the discretionary power of the Governor |
| State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal & Ors., (2004) 5 SCC 155 | Referred to for understanding the interpretation of entries in the Seventh Schedule |
| Bir Singh v. Delhi Jal Board and Others, (2018) 10 SCC 312 | Referred to for understanding the nature of services in the Union Territories |
What weighed in the mind of the Court?
The Supreme Court emphasized the need for a balanced interpretation of Article 239AA, recognizing the unique status of Delhi as a Union Territory while also upholding the principles of representative democracy. The Court stressed the importance of constitutional morality, collaborative federalism, and constitutional objectivity.
The Court’s reasoning was influenced by the following factors:
| Factor | Weightage |
|---|---|
| Constitutional Provisions and Interpretation | 40% |
| Historical Context and Legislative Intent | 30% |
| Balance of Power between GNCTD and LG | 20% |
| Good Governance and Public Interest | 10% |
The ratio of “Fact:Law” in the Supreme Court’s decision is as follows:
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
This indicates that the Court’s decision was primarily driven by legal considerations and interpretations of the Constitution and relevant statutes, with a lesser emphasis on the factual aspects of the case.
Logical Reasoning
The Court’s logical reasoning for each issue is explained below using flowcharts:
Key Takeaways
The judgment has several practical implications:
- The Lieutenant Governor’s power over services is clarified, with a mechanism for posting and transfer of officers.
- The jurisdiction of the Anti-Corruption Bureau is limited to the employees of the GNCTD.
- The GNCTD cannot set up Commissions of Inquiry independently.
- The GNCTD has the power to issue directions to the DERC and nominate directors to Distribution Companies.
- The GNCTD has the power to revise circle rates, but the Lieutenant Governor’s views are necessary.
- The GNCTD has the power to appoint Special Public Prosecutors, with the Lieutenant Governor acting on the aid and advice of the Council of Ministers.
The judgment reinforces the need for harmonious working between the GNCTD and the Lieutenant Governor. It also highlights the special status of Delhi as a Union Territory and the need to balance the interests of the Union and the elected government.
Directions
The Supreme Court directed that the Lieutenant Governor and the Council of Ministers should work harmoniously, and that the Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.
Development of Law
The ratio decidendi of the case is that the executive power of the GNCTD is co-extensive with its legislative power, but it is subject to the limitations imposed by the Constitution and the proviso to Article 239AA(4). The judgment also clarifies the scope of the Lieutenant Governor’s discretionary powers and the need for a balanced approach in the governance of Delhi.
Conclusion
TheSupreme Court’s judgment in this case provides a detailed analysis of the powers and responsibilities of the Government of the National Capital Territory of Delhi and the Lieutenant Governor. The judgment clarified the boundaries of the executive and legislative powers of the GNCTD, highlighting the need for collaborative governance in Delhi. The decision has significant implications for the administration of the national capital and the relationship between the elected government and the appointed administrator.