The Delhi dual governance conundrum

Context

In the absence of statehood for Delhi, there has been a prolonged confrontation on the relative powers of the territorial administration and the Union government.
The status of Delhi being a Union Territory under Schedule 1 of the Constitution but christened the ‘National Capital Territory’ under Article 239AA, engrafted by the Constitution (Sixty-ninth Amendment) Act, put the dynamics of the relationship between the elected Council of Ministers in Delhi and the Central Government under severe strain.

SC Judgement

In 2018, the Supreme Court declared that the L-G is bound by the “aid and advice” of the Council of Ministers, noting that the Delhi Assembly also has the power to make laws over all subjects that figure in the Concurrent List, and all, except three excluded subjects, in the State List.
The L-G ought to act on the “aid and advice” of the Council of Ministers, except when he refers a matter to the President for a final decision.
Regarding the L-G’s power to refer to the President any matter on which there is a difference of opinion between L-G and the Council of Ministers, the Supreme Court ruled that “any matter” cannot be construed to mean “every matter”, and such a reference shall arise only in exceptional circumstances.
L-G shall act as a facilitator rather than anointing himself as an adversary to the elected Council of Ministers. At the same time, the Court ruled that the National Capital Territory of Delhi cannot be granted the status of a State under the constitutional scheme.

Split verdict on services

After the Constitution Bench laid down the law on the broad issues involved, the other contested questions were listed before a two-judge Bench.
While one Judge found that services were totally outside the purview of the Government of NCT, the other held that officers below the rank of joint secretary are under the control of the Government of NCT.
This split has resulted in the present hearing before a three-Judge Bench presided over by the Chief Justice, in the course of which the Solicitor General sought reference to a Constitution Bench.
This has been opposed by the Government of the NCT of Delhi, whose counsel argued that forming another Constitution Bench to decide the matter would amount to a “review” of the earlier Constitution Bench ruling. The 3-Judge Bench has reserved its orders on the question.

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