UPSC Issue at a Glance | Delhi Chief Minister and LG: 4 Key Questions You Must Know for Prelims and Mains

What is the issue?

On Tuesday, Delhi Chief Minister Arvind Kejriwal tendered his resignation to Lieutenant Governor V K Saxena, paving the way for AAP leader Atishi to take over as the new Chief Minister of Delhi. He also requested the Lieutenant Governor to hold early assembly elections in Delhi. However, the term of the Delhi Assembly ends on February 23, 2025. 

The governance structure of Delhi is unique because it is a Union Territory and largely operates under the provisions of the Government of National Capital Territory of Delhi Act, 1991. In this context, understanding the special governance structure of Delhi from a broader perspective becomes important.

UPSC Syllabus: 

Preliminary Examination: Indian Polity and Governance-Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues, etc.

Main Examination: GS-II: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, and Elections.

Other areas of relevance: UPSC Aspirants will find it useful in Essays, and Current affairs for their Personality tests.

Question 1: What are the special provisions under Article 239AA of the Indian Constitution for Delhi?

Delhi is a Union Territory as per the First Schedule of the Constitution of India and Article 239AA of the Constitution provides special provisions for Delhi. 

Inserted into the Constitution by the 69th Amendment Act, 1991, Article 239AA conferred special status on Delhi following the recommendations of the S Balakrishnan Committee that was set up in 1987 to look into Delhi’s demands for statehood.

According to Article 239AA, the NCT of Delhi will have an administrator and a Legislative Assembly. Subject to the provisions of the Constitution, the Legislative Assembly, “shall have the power to make laws for the whole or any part of the NCT concerning any of the matters in the State List or Concurrent List in so far as any such matter applies to Union territories,” except on the subjects of police, public order, and land.

According to Article 239AA(b), “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.”

AAP convenor and Delhi Chief Minister Arvind Kejriwal with Minister Atishi at the residence of Lt Governor V K Saxena to tender his resignation and stake claim for forming a new government led by Atishi, in New Delhi, Tuesday, Sept. 17, 2024. (PTI Photo)

In 1991, when Article 239AA was inserted, the Parliament also passed the Government of National Capital Territory of Delhi (GNCT) Act, 1991, to provide a framework for the functioning of the Assembly and the government of Delhi. It highlights the powers of the legislative Assembly, the discretionary powers of the Lieutenant Governor (LG), and the Chief Minister’s duty to provide information to the LG. 

Points to Ponder: 

— How is Delhi’s administrative structure different from that of other Union Territories?

Question 2: What are the powers and functions of Delhi’s Chief Minister (CM), and how are they limited compared to other state CMs?

The Chief Minister of Delhi has significant powers and functions, For example, the CM is the head of the council and exercises executive authority over areas within the jurisdiction of the Delhi government. The CM also represents Delhi in various forums, plays a significant role in coordinating with the Union Government and other states, and advises the Lieutenant Governor (LG) on matters related to policy and decisions of the Delhi government.  This is similar to the powers of CM’s of other states. 

However, the powers of the CM of Delhi are limited compared to other state Chief Ministers due to the special status of Delhi as a Union Territory (UT) with a Legislative Assembly. The powers and functions of the Delhi CM are governed by Article 239AA of the Indian Constitution, Government of National Capital Territory of Delhi Act, 1991, and subsequent amendments.

Article 239AA (4) deals with the Council of Ministers and CM of Delhi. It says “There shall be a Council of Ministers consisting of not more than ten percent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.”

Comparison between the powers of the Delhi government and other state governments 

Unlike the other states, the Delhi government has no control over the Police, land and public order. These areas fall under the direct control of the Union Government. Thus, we see that the powers of the elected government of Delhi are comparatively limited. 

Article 239AA (3) (a) provides that “the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.”

Also, regarding the appointment and transfer of bureaucrats, the powers of the Delhi government are limited. As NCT of Delhi (Amendment) Act, 2023, provides that the National Capital Civil Services Authority, which will consist of the Chief Minister, Chief Secretary of Delhi, and Principal Home Secretary of Delhi, will make recommendations to the Lieutenant Governor regarding transfers and postings of officials and disciplinary matters. 

Points to Ponder: 

— What are the reasons behind the tussle between the Lieutenant Governor and the elected government of Delhi?

Question 3: What are the powers and functions of the Lieutenant Governor of Delhi?

According to the Government of National Capital Territory of Delhi (Amendment) Act, 2023, “Lieutenant Governor” means the administrator appointed under article 239 of the Constitution for the National Capital Territory of Delhi and designated as Lieutenant Governor by the President.”

Sources of Powers and Functions of Lieutenant Governor of NCT of Delhi

The office of the Lieutenant Governor of Delhi has significant powers and functions. The powers and functions of the Lieutenant Governor of NCT of Delhi are derived from the following sources:-

(i) Provisions of the Constitution.

(ii) Provisions of the GNCT Act, 1991 and GNCT Amendment Act, 1991

(iii) Rules and Regulations made under the GNCT Act and various Acts of Parliament such as the Delhi Police Act 1978, DDA Act 1957, DMC Act 1957, etc.

(iv) In exercise of his powers as “Government” under the provisions of various Acts passed by Parliament and Delhi Legislative Assembly.

(v) Delegation through executive orders issued under Article 239(1) by the President under various law.

What the Constitution says about the Lieutenant Governor of Delhi…

Article 239AA of the Constitution of India specify that the Council of Ministers, with the Chief Minister as its head, shall provide assistance and advice to the Lieutenant Governor in exercising his functions in matters over which the Legislative Assembly has the power to make laws, except in so far as he is, by or under any law.

Powers of LG provided by the amended Government of National Capital Territory of Delhi (GNCTD) Act…

Under the NCT of Delhi (Amendment) Act, 2023, the Lieutenant Governor can act on his discretion in these matters:

1. Matters outside the legislative competence of the Delhi Legislative Assembly but which have been delegated to the LG

2. Matters where he is required by law to act in his discretion or exercise any judicial or quasi-judicial functions.

The Transaction of Business Rules of the GNCTD, 1993 provides that, in addition to the proposals or matters required to be placed before the Lieutenant Governor under any law for the time being in force, the following proposals or matters shall be submitted to the Lieutenant Governor for his opinion through the Chief Minister and the Chief Secretary, before issuing any orders thereon, namely:—

1. Matters which affect or are likely to affect the peace and tranquility of the National Capital Territory of Delhi;

2. Matters which affect or are likely to affect the interest of any particular community, the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes or any other class of persons;

3. Matters which affect the relations of the Government of National Capital Territory of Delhi with the Central Government, or any State Government, the Supreme Court of India or the High Court of Delhi and such other authorities as may be determined.

Atishi takes over as the Chief Minister of Delhi after Arvind Kejriwal’s resignation. (Photo credit: Raj Niwas)

Powers to Appoint Members to Boards, Authorities or Commissions in Delhi 

On 3rd September, 2024, The President has delegated powers to appoint members to boards, authorities or commissions in Delhi to the Lieutenant Governor. The notification was issued by the Ministry of Home Affairs (MHA) and will cover bodies such as the State Election Commission, Public Grievances Commission, Delhi Commission for Women, and the Delhi Electricity Regulatory Commission among others. 

“In pursuance of clause (1) of Article 239 of the Constitution read with Section 45D of the Government of National Capital Territory of Delhi Act, 1991… the President hereby directs that the Lieutenant Governor of the National Capital Territory of Delhi shall, subject to the control of the President and until further orders, exercise the powers of the President under clause (a) of Section 45D of the said Act for constitution of any authority, board, commission or any statutory body by whatever name it may be called, or for appointment of any government officer or ex officio member to such authority, board, commission or any statutory body,” the notification said.

This means that the LG can make the appointments directly, without obtaining a nod from the President. According to sources, while it may not have a significant impact on the appointments, it signals greater power for the LG.

Points to Ponder:

— How the powers provided to LG under Transaction of Business Rules of the GNCTD, 1993 challenges the  principle of the LG acting on the aid and advice of the Council of Ministers? 

— What was 2018 judgement of the Supreme Court reagrding the powers of elected government of Delhi? 

Question 4: What is the tussle between the Delhi Government and the Lieutenant Governor of Delhi?

The special provisions with respect to the national capital Delhi have often become the point of tussle between the elected government and the Lieutenant Governor. While the Supreme Court has, in judgments delivered in 2018 and 2023, upheld the powers of the legislature of Delhi, a constant, politically charged tussle between the Lieutenant Governor and the state government has been seen in recent years.

However, control over ‘services’, or the bureaucracy, has been a bone of contention between the state and the Centre. After the SC clarified that the LG cannot exercise independent discretion on subjects other than the three reserved subjects, the Centre enacted legislation in 2023, bringing services under the control of the LG. This too, is now under challenge before the court.

Express View on Delhi government-L-G tussle: Power where it’s due

“Delhi’s special position as the country’s capital requires a careful and forward-looking re-imagination of the federal contract. However, instead of leading the way towards that end, the Centre has, in recent times, used the L-G’s office to muscle its way into the NCT’s administration…Solicitor General Tushar Mehta’s reasoning that Delhi is not a full-fledged state invited the CJI’s admonition that “What is the point of having an elected government if the administration is to be carried out at the beck and call of the Centre? It has to be ensured that governance of states is not taken over by the Union”.

Post Read Questions

Prelims

(1) With reference to the Article 239AA, consider the following statements:

1. It conferred special status on Delhi following the recommendations of the S Balakrishnan Committee.

2. It was inserted into the Constitution by the 69th Amendment Act, 1991.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

(2) Consider the following statements:

1. S Balakrishnan Committee was set up in 1987 to look into Delhi’s demands for statehood.

2. The Chief Minister of Delhi is appointed by the President.

Which of the statement(s) given above is/are not correct?

(a) Only 1

(b) Only 2

(c) Both 1 and 2

(d) Neither 1 nor 2

Mains

(1) Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine. (UPSC CSE 2018)

(Sources: What is Article 239AA, and how the Supreme Court interpreted it in its Delhi services verdict, Constitution of India, https://lg.delhi.gov.in/, Delhi LG can now appoint members to boards, What powers will the new Jammu and Kashmir Assembly have?, Express View on Delhi government-L-G tussle: Power where it’s due)

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