As of date, there is a lot of friction going on between the Delhi Government and the Central Government regarding the administration of the state, it’s time for us to know whether Delhi is a full-fledged state or a Union Territory. So let us first read the Constitution provisions.

Do you know Delhi is a Union Territory? Yes, under the Indian Constitution Delhi is a Union Territory. Delhi was given a special status in 1991 by the 69th Amendment to the Constitution. Union Territory of Delhi was given a new name and shall be called the National Capital Territory and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor.

This was confirmed by 5 judges’ bench of the Supreme Court in the matter of   New Delhi Municipal Corporation vs State of Punjab

We have already dealt with the special features of Article 239-AA and need not repeat it. Indeed, a reference to Article 239-B read with clause (8) of Article 239-AA shows how the Union Territory of 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 us, it is also a territory governed by clause (4) of Article 246. As pointed out by the learned Attorney General, various Union territories are in different stages of evolution. Some have already acquired Statehood and some may be on the way to it. The fact, however, remains that those surviving as Union territories are governed by Article 246(4) notwithstanding the differences in their respective set-ups – and Delhi, now called the “National Capital Territory of Delhi”, is yet a Union territory.

The following are the provisions:

The following Article was inserted by way of the 69th Amendment in 1991 and was effective from 1st February 1992.

239AA. Special provisions with respect to Delhi —(1) 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.

(2)(a) 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.

(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.

(c) 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.

(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have the 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.

(b) 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.

(c) 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: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: 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.

(4) 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: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly

[(7) (a)] Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.

[(b) Any such law as is referred to in sub-clause (a) 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.]

(8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor, and the Legislative Assembly, as they apply in relation to the Union territory of 3 [Puducherry], the administrator and its Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be. 239AB.

Article 239AB- Provision in case of failure of constitutional machinery. —If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—

(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or

(b) that for the proper administration of the National Capital Territory, it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.]

Now we are here not talking of administration. This issue is before the Supreme Court. We are discussing the power of the Centre to change the status of Delhi.

PROVISIONS FOR THE FORMATION OF STATES AND UNION TERRITORIES

PART I THE UNION AND ITS TERRITORY 1. Name and territory of the Union. —(1) India, that is Bharat, shall be a Union of States.

(2) The States and the territories thereof shall be as specified in the First Schedule.]

(3) The territory of India shall comprise—

(a) the territories of the States;

[(b) the Union territories specified in the First Schedule; and]

(c) such other territories as may be acquired. 2. Admission or establishment of new States. —Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.

3. Formation of new States and alteration of areas, boundaries or names of existing States. —Parliament may by law—

(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State: 1 [Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States 2***, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.]

[Explanation I.—In this article, in clauses (a) to (e), “State” includes a Union territory, but in the proviso, “State” does not include a Union territory. Explanation II. —The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.]

  1. Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.—(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.

Note: In the First Schedule of the Constitution Delhi is shown as Union Territory.

Comments:

A special status was given to Delhi by the 69th Constitutional Amendment and in common parlance it’s called partial state status. But on plain reading of the above provisions two things are very clear Delhi is not a State and is a Union Territory. It is also clear that the administration of Delhi is to be through Lieutenant Governor. Upon plain reading of Article 239AA  the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.

Obiter -interpretation:

Two issues we established are :

  1. Delhi is a Union Territory, and it should be governed through Lieutenant Governor
  2. Special Status may be suspended;

Recently Supreme Court dealt with Jammu and Kashmir Reorganisation Act in the matter of Haji Abdul Gani Khan & Anr. versus Union of India & Ors.  In para 23 Court held that, as far as the Legislative Assembly of the Union territory of J & K is concerned, Article 170 (which provides for the composition of the Assembly)  will have no application as it forms a part of Chapter III of Part VI which deals with only the State Legislature. It has no application to the Legislatures of Union Territories. The reason is that the Legislative Assemblies of the concerned Union Territories will be governed by the law made by the Parliament in accordance with Article 239A and not by the provisions of Chapter III of Part VI. As Article 170 is not applicable to the Legislature of the Union Territory of J & K, the main thrust of the argument that certain provisions of the J&K Reorganisation Act and actions taken thereunder are in conflict with Article 170 and in particular Clause  (3) thereof is clearly misconceived.

Demand for full statehood to Delhi:

The demand for statehood reached its peak in 2003 when the then Deputy Prime Minister L.K. Advani tabled the State of Delhi Bill, 2003, which promised ‘statehood with maximum autonomy’ for Delhi. The Constitutional Amendment (102) Bill intended to repeal two constraining articles: 239AA and 239AB. After its introduction, the bill was moved to Standing Committee for further deliberations.

Cryptic Remarks:

At present two ministers of present Delhi government are in jail. There are serious allegations of misuse of funds and construction of a royal palace for the sitting Chief Minister from public funds. In such circumstances, there are chances that Articles 239AB may be invoked by the Centre as it has all the powers under Articles 170 and 239A.

Shruti Desai

21st May 2023.