Delhi Govt vs Centre : How The Interpretation Of "In So Far As" In Article 239AA Might Be Crucial

The case concerning the dispute between the Delhi Government and the Union Government regarding control of administrative services in the National Capital Territory of Delhi is being heard in the Supreme Court of India before a Constitution Bench. The five-judge bench hearing the matter comprises Chief Justice DY Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli, and P. S. Narasimha. 

While several arguments pertaining to global federal structures, administrative infrastructure of Union Territories, concepts of collective responsibility, and meaning of 'aid and advise' etc were raised in the courtroom, one of the crucial aspects of the case to be decided is the interpretation of the words "in so far as" under Article 239AA of the Indian Constitution. While hearing the matter, even CJI DY Chandrachud had orally remarked that the crux of the matter was the meaning of the expression "in so far as". This article elaborates upon the importance of the same and how it may be crucial for the court in coming to a conclusion in the matter. 

What does Article 239AA state?

 Article 239AA of the Indian Constitution (inserted through the Constitution (Sixty-Ninth Amendment) Act, 1991) created special provisions for Delhi. As per Article 239AA–

- The ‘Union Territory of Delhi’ came to be known as the ‘National Capital Territory of Delhi’ (NCT).

- The ‘Lieutenant Governor’ (LG), became the administrator of the NCT.

- A Legislative Assembly with the power to make laws for the NCT with respect to the matters in the State List and Concurrent List of the Constitution was set up. However, the Legislative Assembly was not empowered to make laws on public order, the police, and land.

- A Council of Ministers and a Chief Minister for Delhi was set up to ‘aid and advise’ the LG on those matters that the Legislative Assembly was empowered to make laws on. 

'In so far as' - Where does the phrase occur?

The phrase 'in so far as' first occurs in clause 3 sub-clause (a) of Article 239AA of the Indian Constitution. It states–

"Subject to the provisions of this Constitution, 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."

So, the question which arose during the hearing is whether the legislative assembly of NCT has legislative powers over all entries in State List (except the entries specified above) or whether such power is only in respect of matters in the State List or Concurrent List applicable to Union Territories. 

Further, the phrase again occurs in clause 4 of the Article – 

"There shall be a Council of Ministers consisting of not more than ten per cent. 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."

What did CJI Chandrachud remark?

While hearing the arguments of the counsels on the issue, CJI DY Chandrachud had orally remarked–

"Clause (4) of 239 AA says that there shall be a Council of Ministers 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 of the GNCTD has power to make laws, except in so far as he is, by or under any law, required to act in his discretion. What is the extent of the executive power of the council of ministers? To aid and advise the LG in respect of matters on which the legislative assembly has the power to make matters. Which is the Article which tells us the areas over which the legislative assembly of the NCT has the power to make laws? That is sub-article (3)(a) (to Article 239 AA). (3)(a) has two qualifications. The legislative assembly of Delhi has no power to make laws with regard to entry one, entry 2, entry 18 of the state list. Executive power of the government of the NCT does not extend to these three subjects. There is one more caveat, if you go back to (3)(a), it says 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. So if a matter in the state list or in the concurrent list is not applicable to the union territories, then you have no power to make law and because you have no power to make law under (3)(a), you have no executive power over that particular subject. Now whether 'services' falls within that description is a different issue. But as a matter of first principle, therefore, the executive power of the GNCTD does not extend to 1, 2 and 18. Also, the executive power of the GNCTD extends to all other entries in list II and list III. But it will not extend to all other subjects in list II and III if that entry is not applicable to the union territories. (3)(a) uses the expression 'union territories'. It is not the union territory of Delhi. So we have to find out whether a particular entry in list II or list III has no application to the union territories in general because the Constitution deliberately uses the expression 'union territories'. So if any entry in the state list or the concurrent list does not apply to the union territories, then the legislative assembly of Delhi has no power to make a law with reference to that particular entry and because you have no power to make law with regard to that entry, you have no executive power over that entry."

Accordingly, the interpretation of the words "in so far as" under Article 239AA of the Indian Constitution will be quite important for the matter.