BJP set to take power in Delhi: What is its unique status, that led to AAP’s long tussle with L-G (original) (raw)

Over the past decade, with the Aam Aadmi Party in power in the national capital, there has been a constant legal tussle between the Centre and the Delhi government over the state’s “unique constitutional status” — and how it is governed.

Article 239 of the Constitution, which deals with the administration of Union Territories, envisages a power structure in which a President governs a UT through an administrator or Lieutenant Governor appointed by her.

However, for certain UTs, Article 239A provides for a dual power structure, with a legislative Assembly — either fully elected, or partly nominated by the President and partly elected — and a Council of Ministers as well as an L-G appointed by the President. There are currently three UTs with an Assembly — Delhi, Puducherry, and Jammu and Kashmir.

Until last week, all three were ruled by parties that are a part of the Opposition in the Centre. This obviously sets the stage for some conflict. And nowhere has this conflict been as relentless as in Delhi, given its status as the national capital and the AAP’s national ambitions in politics.

Article 239AA of the Constitution, inserted through the Constitution (Sixty-Ninth Amendment) Act in 1991, specifically deals with the governance of Delhi. The provision effectively creates three power centres in the national capital — the Chief Minister’s Secretariat, the Lieutenant Governor’s Raj Bhavan, and the Union Home Ministry which controls law and order.

The legal tussles

In 2015, when the AAP returned to power in Delhi with an overwhelming majority — it won 67 of 70 seats in the Assembly — the Union Home Ministry issued a notification stating that the L-G, “shall in respect of matters pertaining to Public Order, Police, Land and Services… exercise powers and discharge the functions of the Central Government, to the extent delegated to him time from time by the President”.

While Article 239AA gives the Union Government power over public order, police, and land in Delhi, the Centre explicitly shifting the control of the bureaucracy (services) to the L-G was significant. The Delhi government immediately moved the High Court. But a decade and multiple court rulings later, this legal issue is still pending before the SC, virtually crippling the governance of the national capital.

Story continues below this ad

In addition to the governance issues over control of bureaucracy, the arrest of Delhi Chief Minister Arvind Kejriwal, and Deputy Chief Minister Manish Sisodia in the excise policy scam led to further vacuum in governance. While Sisodia resigned while in jail, Kejriwal resigned only after the SC granted him bail, nearly six months after he was arrested. The SC had imposed a condition that Kejriwal would not go to the Secretariat or sign any official files while on bail.

Court rulings on Delhi’s constitutional status

In 2016, a two-judge Bench of the Delhi HC ruled in favour of the Centre regarding the 2015 notification.

When the Delhi government moved the Supreme Court in appeal, the issue was referred to a larger Constitution Bench since it required the interpretation of Article 239AA(3)(a). This provision states that the Delhi Assembly has the powers to make laws on aspects in the State List and the Concurrent List like any other state, except for on land, public order, and police.

Two Constitution Benches of the Supreme Court have twice — in 2017 and 2023 — accepted the Delhi government’s position over that of the Centre, and held that the former has legislative and executive powers over administrative services in the national capital.

Story continues below this ad

Responding to the Centre’s argument that since no UT has power over services, Delhi too could not exercise such power, the SC in 2017 reiterated that Delhi’s constitutional scheme is a sui generis (unique) model, and is not similar to any other UT. A smaller two-judge Bench was to apply this ruling to actual cases — this Bench delivered a split verdict, leading to another round of litigation.

A second Constitution Bench in 2023 reiterated that while “the legislative and executive power of Delhi over Entry 41 (services) shall not extend over to services related to public order, police and land. However, legislative and executive power over such services such as Indian administrative services, or joint card of services, which are relevant for the implementation of policies and vision of NCT of Delhi in terms of day to day administration of the region, shall live with Delhi.”

This prompted the Centre, in May 2023, to being an amendment to the Government of National Capital Territory of Delhi Act extending the L-G’s powers to transfer and appoint bureaucrats posted to Delhi. Under the new law, a body comprising the Delhi CM, and the Chief Secretary and principal Home Secretary of the Delhi government would appoint bureaucrats. Such an arrangement means that the CM can effectively be vetoed by two senior bureaucrats on the issue of appointments and transfers of bureaucrats.

This amendment is still under challenge by the Delhi government. But it is unlikely that a BJP-ruled state would pursue litigation against Centre which is ruled by its own party.