Certain provisions in the National Capital Region of Delhi Act, 1991, and the Transaction of Business Rules do not confirm to Article 239AA. This is at the root of the problem between the Delhi Government and its lt Governor
If one can ignore the politics in the slugfest between the lt Governor and the Delhi Government on the question of jurisdiction over civil servants, they will see that the dispute has raised serious constitutional issues concerning the governance of the capital. The latest notification issued by the Ministry of Home Affairs, seeking to clarify the powers of lt Governor Najeeb Jung with regard to civil servants, has raised more questions than providing any clarification.
Delhi is administered by an elected Government which is responsible to the legislature of the National Capital Territory, elected by the voters of Delhi. This administrative and legislative setup was created under the new Article 239AA of the Constitution of India introduced through an amendment in 1992. Section 3(a) of this Article says that the legislative Assembly of the NCT shall have powers to make laws for the whole of the territory or any part of it on all matters in the State list and the Concurrent list except public order, police and land. These three subjects are directly dealt by the lt Governor to whom the President has delegated the powers in respect thereof.
The notification issued by the Ministry of Home Affairs a few days ago, though said to be clarificatory, in fact, vested matters relating to public services in the lt Governor. Thus post notification, the lt Governor has exclusive powers to deal with public order, police, land and public services. The said notification has in effect brought about an amendment of Article 239AA of the Constitution.
It is true that the executive powers of the Union are co-extensive with those of Parliament but these powers do not extend to amending the Constitution which is the exclusive privilege of Parliament. Article 239 is in general terms and it says that every Union Territory shall be administered by the President acting through an administrator who may carry any designation. This administrator is called lieutenant Governor in Delhi. But this position changes when Parliament enacts a law to provide any other setup of governance for a Union Territory.
In the case of Delhi, Parliament amended the Constitution and enacted the NCT Act to provide for an elected legislature and a Council of Ministers responsible to the legislature and vested well defined powers in it. Thus, since 1993, Delhi is not being administered by the President acting through an administrator as is the case with the ordinary Union Territories.
It should be clear now that the governance of Delhi is being carried not under Article 239 but under Articles 239AA and 239AB of the Constitution of India. These are special provisions which were put in the Constitution to establish a deferent governmental and legislative setup for Delhi. Under these provisions, the lieutenant Governor is required to act on the advice of the Council of Ministers on all matters including the public services except the three reserved subjects.
However, it must be said here that certain provisions in the National Capital Region of Delhi Act, 1991 and the Transaction of Business Rules do not strictly confirm to Article 239AA which seems to be at the root of the present problem.
This law was made by Parliament to give effect to the provisions contained in Article 239AA and 239AB and also to supplement these provisions with certain additional provisions to deal with incidental and consequential matters.
Supplemental provisions cannot go beyond what is provided in the Constitution. For example Section 49 of the NCT Act says that notwithstanding anything contained in the Act, the President has general control over the lt Governor and the Council of Ministers who shall comply with all directions issued by the President from time-to-time.
In India’s constitutional democracy, the President can act only on the advice of his Council of Ministers. A legitimate question arises here — can the powers vested in the Delhi Government by the Constitution of India be taken away by the Union Government through some directionsIJ It appears that Section 49 of the Act violates Article 239AA of the Constitution of India.
The Transaction of Business Rules have often been quoted in all channel discussions and Press reports. It must be remembered that the President makes these rules for the Transaction of Business by the Government with regard to matters on which the lt Governor can act only on the advice of the Council of Ministers. These rules do not apply to the lt Governor’s discretionary items.
But rule 46 of the Transaction of Business Rules says that with respect to the civil servants, the lt Governor will act either in accordance with the relevant rules governing their service conditions or under orders issued by the President under Article 239. This is absurd because as per Article 239AA, civil servants come under the control of the Delhi Government.
(The writer is a constitutional expert and former Secretary General of the lok Sabha)