GOVERNMENT OF NCT OF DELHI v.

UNION OF INDIA

ABSTRACT
The following is a briefcase analysis of the case titled Government of NCT Of Delhi V.
Union of India (Civil Appeal No. 2357 of 2017) which was decided on 14.02.2019. Writ
petition had been filed in High Court to determine powers of the elected government of Delhi
vis-a-vis Lieutenant Governor of Delhi - High Court held that since National Capital
Territory of Delhi (NCTD) remains Union Territory, it was President who continues to
administer NCTD as well as Territory of Union, i.e., the Central Government and his
nominee, namely, Lieutenant Governor enjoys overlapping powers - Appeals filed before
Division Bench of this Court, Division Bench found that issues raised were of seminal
constitutional importance and needed to be referred to Constitution Bench - Matters were,
accordingly, referred to Constitution Bench to answer the question, namely, ambit and scope
of powers of GNCTD in juxtaposition to that of Lieutenant Governor - Thus, Constitution
Bench had also accepted that Lieutenant Governor was to act on aid and advice of Council of
Ministers in all his acts, except those functions where Lieutenant Governor was permitted to
exercise his own discretion. The aftermath of the case highlighted the need for laws that need
to be in order with the other Article of the constitution. This case has been read, summarised
and analysed broadly under the following headings: Facts of the case, issues at hand,
arguments from both sides, legal aspects involved and overview of the judgement. This case
focuses on Article 143 of Indian constitution's legal provisions, Article 243 clause 3 of Indian
Constitution, Article 293A of Indian constitution, Article 246 of Indian constitution.

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INTRODUCTION
This case is a civil appeal No. 2357 of 2017
This case is in relation to stating the powers of Lieutenant Governor of Delhi.

BRIEF FACTS OF THE CASE

1. The writ petition had been filed in the High Court to determine powers of the elected
government of Delhi vis-a-vis the Lieutenant Governor of Delhi.
2. The High Court held that since NCTD remains a Union Territory, it was the President who
continues to administer NCTD and Territory of the Union, i.e., the Central Government and
his nominee, namely, the Lieutenant Governor enjoys the overlapping powers.
3. When these appeals came up before the Division Bench of this Court, the Division Bench
found that issues raised were of seminal constitutional importance and needed to be referred
to a Constitution Bench in terms of the provisions contained in Clause 5(5) of Article 143 of
the Constitution.
4. The matters were, accordingly, referred to the Constitution Bench to answer the certain
question, namely, ambit and scope of the powers of the GNCTD in juxtaposition to that of the
Lieutenant Governor.
5. The Constitution Bench had also accepted that the Lieutenant Governor was to act on the
Council of Ministers' aid and advice in all his acts, except those functions where the
Lieutenant Governor was permitted to exercise his own discretion.

ISSUES OF THE CASE

1. The first issue is that posting orders of Public service commission Officers (IAS, IPs, etc.)
are to be passed by the President of India (or for that matter the Lieutenant Governor) or it is
the Government of NCTD which is competent to exercise such power once the manpower is
assigned to it.
2. The second issue was that the Anti-Corruption Bureau Police Station setting was under the
control of the Home Ministry, which had empowered the Lieutenant Governor to exercise
such power and directed ACB Police Station not to take cognisance of offences against
officials of Central Government the GNCTD challenged these.
3. The third issue was that Whether GNCTD was empowered to set up the Commission of
Inquiry under the said Commission of Inquiry Act, 1952 of its own and without placing the
matter before the Lieutenant Governor for his views/concurrence.

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4. The fourth issue was whether this power lies with the Lieutenant Governor to the exclusion
of GNCTD which is competent to appoint Public Prosecutors, including Special Public
Prosecutors under Section 24 of Criminal Code Procedure in individual cases.

ARGUMENTS FROM THE APPELLANT SIDE

It was submitted that reliance placed by the learned counsel appearing for the Union of India
on Balakrishnan Committee report for interpreting the provisions of Article 239AA was
totally misconceived since that aspect has already been considered in the judgment of the
Constitution Bench. It was argued that the Constitution Bench had interpreted the provisions
of Articles 239, 239AA and 239AB as they apply to NCT of Delhi based on first principles of
constitutionally mandated representative democracy, which is based on popular will. Textual
limitations have not constrained the Constitution Bench in giving the interpretation. This is
best stated in Para 11 of the Constitution Bench judgment. In the light of those principles, the
Court has interpreted Article 239AA and its various provisions after that. Insofar as
Balakrishnan Committee Report is concerned, it is not accepted as an interpretative tool, as is
clear from the following discussion. There can be no quarrel about the proposition that the
Committee's reports enacting legislation can serve as an external aid for construing or
understanding the statute.

ARGUMENTS FROM THE PROSECUTION SIDE

M/s. Kapil Sibal, P.C. Chidambaram, Shekhar Naphade and Ms Indira Jaising argued the
matter on behalf of NCTD, appearing in different appeals. Insofar as the interpretation
mentioned above suggested by the learned counsel appearing for India's Union is concerned,
a strong reputation on behalf of the NCTD is that the judgment, in no uncertain terms, holds
that the executive power of NCTD is co-extensive with its legislative power. According to
them, the Constitution Bench has held explicitly that this executive power pertains to all the
Entries in List II, (except Entries 1, 2 and 18, which are specifically excluded) and all the
entries in the Concurrent List, i.e. List III. Such power is 'exclusive' which belongs to
GNCTD to the exclusion of the Central Government. The learned counsel also submitted that
at least at seven other places, the majority judgment has made it clear that Delhi
Assembly/Government has Legislative/Executive Competence over all subjects except three
subjects and as a corollary, the executive power of the Union Government in Delhi is limited
to three excluded subjects in List II.

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LEGAL ASPECTS
This case revolves around Article 239A, 239AA of Indian Constitution and Section 24 of
Indian code Of Criminal Procedure.

ARTICLE 239AA
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. 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. The total number of seats in the Legislative Assembly, the number of seats
reserved for Scheduled Castes, the division of the National Capital Territory into territorial
constituencies (including the basis for such division) and all other matters relating to the
functioning of the Legislative Assembly shall be regulated by law made by Parliament. The
provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital
Territory, the Legislative Assembly of the National Capital Territory and the members
thereof as they apply, in relation to a State, the Legislative Assembly of a State and the
members thereof respectively; and any reference in articles 326 and 329 to "appropriate
Legislature" shall be deemed to be a reference to Parliament.

ARTICLE 293A
Parliament may by law create for the Union territory of Puducherry a body, whether elected
or partly nominated and partly elected, to function as a Legislature for the Union territory, or
a Council of Ministers, or both with such constitution, powers and functions, in each case, as
may be specified in the law. Any such law as is referred to in clause (1) shall not be deemed
to be an amendment of this constitution for the purposes of article 368 notwithstanding that it
contains any provision which amends or has the effect of amending this constitution.

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SECTION 24, INDIAN CODE OF CRIMINAL PROCEDURE
For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor and may also appoint one or
more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or
other proceedings on behalf of the Central Government or State Government, as the case may
be.

VIEWS OF THE COURT

Thus, the Constitution Bench in Bir Singh (supra) has opined that services in the National
Capital Territory are clearly Central civil Services. What has been held by the Constitution
Bench also reinforces that there are no State Public Services in the NCT, Delhi. Learned
counsel appearing for the appellant has placed much reliance on the Delhi Fire Services Act,
2007 to buttress his submission that by the Act mentioned above, State Services namely
Delhi Fire Services has been created, which clearly means that Entry 41 of List II applies to
Delhi Legislative Assembly. The Delhi Fire Services Act, 2007 has been passed to provide
for the maintenance of fire service and make more effective provisions for the fire prevention
and fire safety measures in certain buildings and premises in the National Capital Territory of
Delhi matter connected in addition to that. The Legislative distribution powers of State and
the Parliament is provided under Articles 245 and 246 of the Constitution. Article 246 which
provides for the subject-matter of laws made by Parliament and by the Legislatures of States.

OVERVIEW OF THE JUDGEMENT

having held that Entry 41 of List II of the Seventh Schedule of the Constitution is not
available to the Legislative Assembly of GNCTD, there is no occasion to exercise any
Executive power with regard to "Services" by the GNCTD, since the Executive power of the
GNCTD as per Article 239AA (4) extend in relation to matters with respect to which
Legislative Assembly has the power to make laws. With regard to "Services" GNCTD can
exercise only those Executive powers, which can be exercised by it under any law framed by
the Parliament or it may exercise those Executive powers, which have been delegated to it.
Government of NCT Of Delhi V. Union of India (Civil Appeal No. 2357 of 2017) stands
disposed of upholding the Delhi High Court's judgment dismissing the Writ Petition (C) No.
5888 of 2015. The other appeals are disposed of as per order proposed by esteemed Justice

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A.K. Sikri. Contempt Petition (C) No. 175 of 2016 is closed. The parties shall bear their own
costs.

CONCLUSION
That situation may give discretionary powers to the L.G. On the other hand, it also could not
be said that once the manpower was allocated to Union Territory of Delhi, the GNCTD
should not have any power to deal with such employees, in view of C.B. Judgment. In such a
scenario, and to avoid any conflict of exercise of powers between the L.G. on the one hand
(as representatives of the Central Government) and the Council of Ministers with Chief
Minister as Head, on the other hand, we are of the opinion that for the smooth functioning of
the system, it was necessary to carve out a just and fair mechanism. All the issues were duly
addressed, and the writ petitions were disposed.

SUGGESTIONS
In India, NCTD remains a union territory and will be governed by the President of India
regardless of any new introductions in the constitution. This case clearly defined the powers
of Public Officers in Delhi and the cognisance in ACB. Each of the writ petitions had their
own merits. Through this case, all the issues at hand which had aroused were settled and
acted as a benchmark for the future cases in this regard.