The political tussle between the Arvind Kejriwal led Government of the National Capital Territory of Delhi (GNCT) and the Lt. Governor and the Central Government has finally reached the Constitutional Bench of the Supreme Court of India, to determine the exact nature of relations between the Lt. Governor and the GNCT. While the case deals with a wide range of legal issues, while analysing the case, it is important to keep in mind the unique constitutional position enjoyed by Delhi and the essential principles of popular sovereignty and republican government, which are part and parcel of our Constitutional ethos.
When the Lt. Governor appointed the Chief Secretary of Delhi without consulting the Chief Minister of Delhi and stalled the commissions of inquiry appointed by the Chief Minister on the ground that Lt. Governor was not consulted, the main underlying justification for such actions on part of the Lt. Governor was that the executive powers in relation to “services” vested in him and that a Commission could only be appointed with his concurrence. It was also argued that since Delhi is a Union Territory, the position of the Lt. Governor was superior to the Chief Minister in terms of executive authority, similar to other Union Territories, and was not a federal relationship as between the States and the Central Government. This also raises the question of what is the basis of a federal division of powers and the very essence of a federal relationship itself.
Dr. B.R Ambedkar in his speech in the Constituent Assembly on November 4, 1948 has stressed that ‘A Federal Constitution means division of Sovereignty by no less a sanction than that of the law of the Constitution between the Federal Government and the States.’In a separate speech delivered on November 25, 1949, Dr. Ambedkar stated ‘The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself ’and that ‘the chief mark of federalism as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our constitution.’ Therefore the main essence of a federal relationship between two units, is that the powers between the units are divided by the Constitution i.e. an exercise of constituent powers, not merely statutory powers. In this regard, Delhi is unique, as it is the only Union Territory which has a division of powers with the Central Government enumerated within the Constitution itself in the form of Article 239AA. Delhi and Puducherry are the only Union Territories with an elected Chief Minister and a legislative assembly, however, Article 239A, the Constitutional provision governing Puducherry, states that Parliament may by law create for the Union territory of Puducherry to setup a legislative assembly and a Council of Ministers. Article 239A(2) clearly states that any such law made by Parliament will not be considered an amendment to the Constitution. Therefore, the source of the distribution of powers in Puducherry is statutory in nature, whereas the distribution of powers in case of Delhi is laid down by a law not less than the Constitution of India.
Shri T.T Krishnamachari while elaborating on the essential features of federalism in the Constituent Assembly made an important observation when he said that the most important feature of a federal relationship is “that the activity of the State must not be completely circumscribed by orders handed down for execution by the superior unit. The important words are ‘must not be completely circumscribed’, which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority.”Article 239AA of the Constitution of India empowers the legislative assembly of Delhi to enact laws on all subjects listed under List II and List III of the Seventh Schedule of the Constitution, except for matters relating to public order, police and land. Therefore, it is important to note that relationship between Delhi and the Central Government falls within the definition of a federal relationship as elaborated by the those who drafted the Constitution of India and because the source of its power is vested in a constitutional provision. The mere fact that it is called a “Union Territory” does not detract from its full sovereign powers to legislate and to take executive action in relation thereto.
Various aspects of the Constitution of India are based on the framework of the earlier Government of India Act, 1935, even though its provisions on the federal structure were never fully executed due to the resignation of the Congress Ministries and the onset of World War II. However, prior to the enactment of the Government of India Act, 1935, the aspect of provincial autonomy was analysed by the Joint Committee on Indian Constitutional Reform (Session 1933-34). The report of the Joint Committee had noted that essence of provincial autonomy is that the provincial governments exercise original powers and not devolved powers. By enumerating the powers of the GNCT Delhi and that of the Delhi Assembly in Article 239AA, the provincial setup in Delhi enjoys original powers, rather than devolved powers, which would devolve through a statute made by Parliament.
While the relationship between GNCT and the Central Government may not be strictly federal in the traditional sense, it is a form of asymmetrical federalism in order to take into account the unique position of the NCT Delhi. Constitutional law expert, the late H.M Seervai had observed that in order to be called “federal”, it is not necessary that a Constitution should adopt a federal position completely. It is enough if the federal is the predominant principle in the Constitution. For instance, until 1913 members of the US Senate were elected by the State legislatures, however post the XVIIth Amendment, the Senate was elected by the people, nevertheless the US Constitution still remained a Federal Constitution, because the federal principle was predominant.
Seervai also observed that the power of the Federal Government to intervene in the affairs of the State is a feature of federalism. He reasoned that “Sections 45, 92 and 35 of the Government of India Act, 1935 contained provisions to deal with a failure of the constitutional machinery. On being satisfied that there was a failure of constitutional machinery in the Federation or in a Province, the Governor-General (in respect to the federation) or the Governor (in respect to the Province), could issue a proclamation which enabled them to assume the powers of the Federal and Provincial legislatures respectively. Similarly, Articles 356 and 357 provide for similar situation, whereby the President can issue a proclamation and impose President’s Rule. This power, if properly exercised, uphold the federal principle.” It is important to note that Article 239AB provides for the dismissal of the GNCT Delhi and to extend President’s rule in Delhi in case of a failure of the Constitutional mechanism. This aspect does not detract from the federal relationship between GNCT and the Central Government. Moreover, it establishes that executive powers rest with GNCT since they are accountable to the people as a responsible government and it is only in the event of a failure to carry on the affairs of NCTD in accordance with Article 239AA that the Central Government in the form of the Lt. Governor, could impose President’s rule in the region, taking away those powers and responsibilities. There would be no requirement to enforce President’s rule in GNCT Delhi if it was a Union Territory simpliciter, as Union Territories are governed by the administrator appointed by the President of India as per Article 239 of the Constitution.
The Balakrishnan Committee Report, which eventually led to the insertion of Article 239AA by way of the 69th Constitutional Amendment in 1991, had studied the various mechanisms by which Delhi could be governed. The Committee had concluded that maximum autonomy should be provided to Delhi and that it could not be treated like any other Union Territory, however since it is the seat of the Central Government and the base of various International Missions, it was felt that the subjects relating to Police, Public Order and Land should not be reserved to the competence of the Delhi Assembly, unlike the assemblies of other states. Therefore, except for these three subjects, the autonomy of Delhi must be read as wide as possible under Article 239AA. It is interesting to note that Delhi has 3 representatives in the Rajya Sabha, which is the Council of States, unlike all other Union Territories, with the exception to Puducherry, under the 4th Schedule to the Constitution of India.
The concepts of popular sovereignty and responsible government must also be kept in mind while reading Article 239AA. Popular sovereignty is the concept that source of sovereignty is with the people, this has been an essential feature of Indian democracy. The Preamble to the Constitution of India makes it abundantly clear that the source of power of the Constitution are the people, by using the phrase “We the People of India having solemnly resolved to constitute India into SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC.” In the Constituent Assembly debates, in response to a request for clarification as to whether the sovereignty resides with the people, Dr. B.R Ambedkar unambiguously said “Beyond doubt it vests with the people. I might also tell my friend that I shall not have the least objection if this matter was raised again when we are discussing the Preamble.”
In Virendra Singh and Ors. vs. The State of Uttar Pradeshthe Supreme Court reiterated that the sovereignty vests with the people, by stating “Every vestige of sovereignty was abandoned by the Dominion of India and by the States and surrendered to the peoples of the land.” Therefore, the Executive i.e the Council of Ministers headed by the Chief Minister, executes the sovereign will of the people and is responsible to the people.. The legislature is also formed as the body representing the sovereign powers of the people, through the process of adult franchise. This aspect was elucidated by the Supreme Court in People’s Union for civil Liberties (PUCL) and Ors. vs. Union of India (UOI):
“The trite saying the ‘democracy is for the people, of the people and by the people’ has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate.”
The concept of a ‘responsible government’, whereby the government is accountable to the house of the people is natural corollary from the concept of popular sovereignty. The Supreme Court in S.R. Chaudhuri v. State of Punjab and Orswhile discussing the concept of responsible government and source of the powers of the legislature resting with the people, stated:
“The very concept of responsible government and representative democracy signifies government by the people. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The members of the Legislature, thus, must owe their power directly or indirectly to the people. The members of the State Assemblies like the Lok Sabha trace their power directly as elected by the people while the members of the Council of State like the Rajya Sabha owe it to the people indirectly since they are chosen by the representatives of the people. The Council of Ministers of which the Chief Minister is the head in the State and on whose aid and advice the Governor has to act, must, therefore, owe their power to the people, directly or indirectly.”
Responsible Government is the hallmark of Parliamentary democracy, whereby the executive is directly responsible to the legislature for its decisions. A Republican Government is one in which the powers of the Government are directly sourced from the people. In Keshavananda Bharati v State of Kerala, the Supreme Court enunciated the ‘basic structure’ doctrine, whereby no law, including constitutional amendments, can contravene the fundamental features of the Constitution. “Republican and Democratic form of Government” was recognized by Keshavananda as being part of the basic structure of the Constitution of India. The GNCT is directly responsible to the legislative assembly of Delhi, unlike the Lt. Governor. Therefore, Article 239AA must be read in a wide and expansive manner in order to provide maximum autonomy to the GNCT, in harmony with the ‘basic structure’ and to reflect the sovereign will of the people.
In Constitutional law, executive powers are co-terminus with legislative powers. The second proviso to Article 239AA (c) states:
“Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.”
Therefore, one may argue that in light of overriding legislative powers of Parliament, the Central Government can exercise overriding executive powers through the Lt. Governor, by using the principle that executive powers correspond to legislative powers.
The extent of executive powers of the Central Government and the States are governed by Article 73 and 162 of the Constitution of India. The proviso to Article 73(1), however provides an exception to the rule that the executive powers are co-terminus with the legislative authority. H.M Seervai explained this aspect as follows:
“Normally, executive authority is co-extensive with the legislative authority, this general rule would have extended to the Concurrent Legislative List, but the proviso to Article 73(1) expressly states that the executive power of the Union shall not extend in any State to matters within the legislative competence of the State, except to the extent that the Constitution, or a law made by Parliament, provides otherwise.”
The proviso to Article 73(1), however enables to the Central Government to extend its executive powers to any matter which can be legislated by the States, if there is an express law or a provision of the Constitution, authorizing it to do so. This principle is reiterated in Article 162 as well.
In the Constituent Assembly debates in relation to the draft Article 60 (which corresponds to Article 73), concerns were raised that by including the proviso to Article 73(1) whereby the Centre can extend its executive powers to concurrent subjects through the express authorization by a Central statute, the federal nature of the Constitution would be jeopardized. In response to this Dr. Ambedkar and T.T Krishnamachari explained that the Central Government can only extend its executive powers to a State under Article 73(1) in exceptional situations, such as to execute the duties vested on it by the Constitution or a social welfare legislation, rather than remaining as a mute spectator, when the State Government fails to discharge its duties. For instance, if a State refuses to act against untouchability, the Central Government can use its powers under Article 73(1) to re-enforce the constitutional prohibition of the same. Overriding executive powers cannot be used to in relation to routine administrative functions such as the appointment of bureaucrats or in clearing committees etc. The same principle of exclusive executive power to the State in matters of the concurrent list must apply to Delhi in relation to the executive list and the state list by necessary implication.
While Delhi may not be a State in the strictest sense of the word due to the unique position it enjoys, the tag of being a Union Territory is far more a matter of nomenclature than actual distribution of powers, especially since it enjoys most of the attributes enjoyed by other States, unlike other Union Territories. It is important that the Supreme Court adopts an expansive interpretation of Article 239AA and recognize the popular will of the people of Delhi, represented through GNCT, and re-enforces the concept of federalism, at a time when it is being challenged by a resurgent and unitarian Central Government.
Arvind Kurian Abraham, a lawyer based in New Delhi and the former Director of the Constitutional Law Society of NUJS, Kolkata.
 Dr. B.R Ambedkar, CAD, Vol VII, November 4, 1948
 Dr. B.R Ambedkar, CAD, Vol XI, 25th November, 1949