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(This is the second part of a series of guest posts by Vasudev Devadasan, exploring the issues in the ongoing dispute between the government of Delhi and the Union of India, being heard by a Constitution Bench of the Supreme Court.)

The last post on Delhi v Union of India (here) touched upon the unique status of Delhi under Article 239AA. Schedule 1 of the Constitution classifies territories into ‘States’ and ‘Union Territories’, with Delhi falling into the latter category. However, Delhi also has a legislature elected from its territorial constituencies. This post examines how the creation of this legislature impacts the dispute between the Delhi governor and Lt. Governor and whether merely because Delhi is not a full-fledged State, the powers of this legislature can be dismissed. By looking at arguments from a textual and structural reading of the Constitution this post tries to determine if the addition of Article 239AA to the Constitution has modified the legislative and executive supremacy that parliament ordinarily has over union territories.

To broadly summarise the relevant legal provisions:

  • Article 239 provides that all union territories shall be administered by the President acting through an administrator (the Lt. Governor in the case of Delhi).
  • Article 239A allows parliament to create, through statute, a partly or wholly elected body to function as the legislature for union territory, with such a body’s powers being specified by parliament.
  • Article 239AA (2a) and (3a) provides that Delhi shall have a fully elected legislature from its territorial constituencies. This legislature shall have the power to make laws on matters in the State List (List II) and the Concurrent List (List III) except on entries I, 2, and 18, subject to the provisions of the Constitution and as applicable to union territories.
  • Article 239AA (3b) and (3c) notes that the power of the Delhi legislature is not in derogation of parliament’s power to pass laws; and that in the event of a conflict between a law passed by parliament and a law passed by the Delhi legislature, the former shall prevail.

Legislative and Executive Power

Under a parliamentary system of government, executive power is co-extensive with legislative power. This is demonstrated by Article 73 of the Constitution which grants the central government executive power on all matters which parliament is competent to make laws on. However, the proviso to Article 73 notes that the central government will not have executive power on matters which a State government is competent to make laws on. Thus, where a legislature has been granted power to make laws on certain matters, executive power on these matters ordinarily vests itself in this legislature and is exercised by the council of ministers.

Therefore, the question of who enjoys legislative supremacy in Delhi is crucial to understanding whether the Lt. Governor or the council of ministers is the executive head of Delhi. The Delhi High Court in its initial analysis of the constitutional scheme found that the addition of Article 239AA to the Constitution did not make Delhi a State. It did not explain where exactly the legislative power with respect to Delhi arose from, rather jumping straight to the question of whether executive power was vested in the Lt. Governor or the council of ministers. It did however quote extensively from NDMC v State of Punjab where the Court had held that because Delhi was not a state, it was thus governed by Article 246(4), which grants parliament absolute legislative power on any territory that is not a State.

However, the NDMC judgement itself notes that “all Union Territories do not have the same status.” The Constitution creates three distinct types of union territories: (1) a union territory without a legislature, (2) a union territory where parliament has created a legislature by statute, and (3) a union territory where the Constitution has created a legislature (Delhi). In fact, the Constitution is rife with examples of such ‘asymmetric federalism’, where federal sub-units are treated differently from each other. Article 371 contains special provisions for multiple States, territories in the northeast have ‘autonomy arrangements’, and of course Jammu and Kashmir has a unique status.

Therefore, to argue that merely because Delhi is not a State, parliament has plenary power is insufficient, especially where the Constitution itself provides a special provision (Article 239AA) for the territory.

The argument from the text

A textual argument is not the literal meaning of the words, but rather an argument that relies solely on the text of the provision in question and the present understanding of those words. In answering the question of legislative supremacy the Court in NDMC acknowledged that Article 239AA (3a) sets up a competent legislature, but then concluded that clauses (3b) and (3c) clearly demonstrated that parliament still retained plenary legislative powers over Delhi. Recall that 239AA(3b) states that:

Nothing in sub-clause (a) shall derogate from the powers of Parliament under this constitution to make laws  with respect to any matter for a Union Territory or any part thereof.

And 3(c) provides that:

If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or , as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void.

As noted above, the Constitution contemplates three distinct types of union territories as seen from the text of Articles 239, 239A, and 239AA. The first type of union territory has no legislature and parliament plus the administrator (appointed by the President) are clearly the relevant bodies to govern such a territory. The second type of union territory is union territory is where parliament, through a statute, creates a legislature that is either elected or partly elected and specifies its powers (such as Puducherry). There are unlikely to be any allocation issues arising out of an arrangement because parliament has the power to create an arrangement suitable to it, and modify the arrangement at will. Thus, indirectly, parliament retains legislative supremacy.

The last type of union territory is that where the Constitution itself has created a wholly elected legislature. While the consequences of incorporating a provision in the Constitution are open for debate, two points come to mind. Firstly, incorporation into the constitution can signal a level of permanency, or a ‘pre-commitment’ to an idea. Even in a Constitution that is amended as often as ours, the incorporation of the Delhi legislature in Article 239AA indicates that both the existence and content of the Delhi legislature is not something the Constitution leaves to the whims of a simple majority in parliament. Otherwise Article 239A would have been sufficient. Secondly, by incorporating the Delhi legislature in the Constitution, the source of the legislature’s power is the Constitution, just like parliament or a State legislature. Thus, it is a distinct constitutional institution whose powers and relationship with parliament are governed by the provisions and norms of the Constitution. In the case of an ordinary union territory, the powers of parliament may truly be plenary, however in the case of Delhi, they would be regulated by Article 239AA. For example, if parliament were to pass a law that nominated members onto the Delhi legislature, such a statute would be ultra vires the Constitution as Article 239AA (2a) requires seats in the assembly to be filled by direct election from the constituencies of Delhi.

Coming to the question of legislative powers in governing Delhi, Article 239(3a) grants the legislative assembly of Delhi competence to pass laws on matters in List II and III. However, unlike Article 246(3) which grants a State legislature “exclusive power to make laws for such State”, Article 239AA (3a) makes no mention of exclusivity. Additionally, Clause 3b on the other hand note that this power is not in derogation of the powers parliament has over union territories. Thus, Article 239AA seems to vest legislative power in both the Delhi legislature and parliament.

The argument from structure

A structural argument doesn’t rely on the text of a specific provision. It examines the existence and position of various provisions across the entire Constitution to determine the institutional arrangements that the document contemplates and applies them to specific situations. Philip Bobbitt in explaining the structural argument cites the 1868 American case of Crandall v Nevada where a tax was imposed on individuals leaving one State and travelling to a new one. The argument goes that firstly, elected representatives needed to leave their State and travel to Washington D.C., and secondly ordinary citizens needed to do the same if they wished to approach the seat of government and plead their cause. Thus, the relationship between individuals and their elected representatives, and the national government and the State governments prohibited a tax on leaving the State. In India an often-cited example of structural reading is how the Supreme Court uses the existence various provisions to determine the ‘basic structure’ of the Constitution.

While Delhi is strictly classified a ‘Union Territory’ under the Constitution, it is important to note that the relationship between the people of Delhi and parliament is markedly different from that of other union territories. As has been noted (here), when residents of an ordinary union territory votes in national elections, they are also in effect voting for their local government. However, when the residents of Delhi votes in national elections, they are not voting for their local government. The residents of Delhi choose their local government during the Delhi legislative assembly elections (which are also administered by the Election Commission of India) in the same manner that residents of any States choose their local government.

This is not to suggest that Delhi is more akin to a State. Rather, that where the Constitution creates an elected legislature and a council of ministers, and gives them competence on certain matters, it envisages a relationship where such a legislature is empowered to fulfil the demands of the electorate. Therefore, the relationship between the electorate and an elected legislature would favour an outcome where the legislative assembly of Delhi had sufficient legislative powers to fulfil the mandate of the electorate.

However, as even Bobbit notes, structural arguments often seem indeterminate because, “while we can all agree on the presence of various structures, we fall to bickering when called upon to decide whether a particular result is necessarily inferred from their relationships.”

Conclusion

In the NDMC v State of Punjab decision, the court concluded that, “Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part VI of the Constitution. In sum, it is also a territory governed by clause (4) of Article 246.” To the Delhi High Court’s credit, it acknowledged that Delhi would be governed Article 239AA. However, it did not explore the consequences of Delhi not being governed by Article 246(4), nor the distinction between legislature created by statute and one created by the Constitution. Article 239AA creates a delicate power sharing arrangement with respect to legislative power that is likely better understood in practice than from the text of the Constitution.

We noted above that executive power flows from legislative power. Therefore, understanding that both parliament and the Delhi legislature have concurrent legislative power is an important step in understanding where executive power is vested. Clearly it is not an open-shut case of parliament having plenary powers and thus the Lt. Governor being the sole executive head, as might have been the case with an ordinary union territory. To understand the impact of this concurrent legislative power on executive power is the next step.

While a decision of the Supreme Court will certainly provide a definitive answer as to how Delhi is to be governed, it is worth questioning the value in this. Often the Constitution, unable to secure political consensus, creates a set of constitutive rules that enables deliberation on the matter in the future. Thus, Article 239AA could be seen as setting out the de-minimis rules which, while leaving the question of ultimate legislative and executive supremacy unanswered, create a framework of deliberation through which the question can be answered on an ongoing basis through the constitutional practice of the relevant actors. Article 239AA may tell us only so much about how Delhi is to be governed, but the political fact that Delhi has been governed under the provision through deliberation and disagreement for over two decades without a Supreme Court verdict is to be noted.