This case will decide if Delhi is a Union Territory or a Special State. It also raises constitutional questions about legislative federalism between Centre and Delhi.
The tussle between Mr Arvind Kejriwal, the Chief Minister of Delhi, and Lt. Governor Najeeb Jung, ex. Lt. Governor of Delhi, lead to a legal controversy on the status of the NCT (National Capital Territory) – Is it a Union Territory with the Lt. Governor as the executive head, or a Special State that has an elected legislature where the Lt. Governor is bound by the advice of Chief Minister?
This case was heard by the Delhi High Court because of a series of run-ins between Arvind Kejriwal and Najeeb Jung over matters like the appointment of Chief Secretary without consulting the Lt. Governor or Chief Minister instituting corruption enquiries without Lt. Governor’s concurrence.
The confusion arises due to the special nature of Delhi which is a Union Territory with the features of a State, such as having an elected legislature. The 69th Amendment to the Constitution in 1992 added Article 239AA, which mandated elected Assembly for Delhi. The special provisions added through the 69th Amendment created confusion with respect to the jurisdiction of Delhi Government vis-a-vis the Centre.
The Delhi High Court in its judgment delivered on 4th August 2016 held that Delhi continues to be a Union territory despite Article 239AA. It further held that the special provisions incorporated for Delhi do not overrule the effect of Article 239. Article 239 empowers the Lieutenant Governor to act independently of his Council of Ministers. As a result, all enquiries which were initiated by the Delhi Government without the concurrence of Lt. Governor were declared illegal, such as the enquiries into the issuance of CNG permit to vehicles, a financial enquiry into Delhi and District Cricket Association, among others. The concurrence of the Lt Governor became mandatory for all administrative decisions of Council of Ministers of Delhi.
The Delhi Government has challenged this decision of the Delhi High Court before the Supreme Court. After briefly engaging with the constitutional confusion over Delhi, a two-judge bench in February 2017 referred the matter to a constitutional bench.
The matter is now listed before a five-judge bench.
Should Delhi be treated like a Union Territory with the Lt. Governor as its administrative head or as a Special State where Lt. Governor is bound by the advice of Chief Minister?