Article 239AA, in Force Since 1 February 1992, Gives Delhi a Directly Elected Assembly of 70 Seats, and Supreme Court Rulings of 2018 and 2023 and an Act of 11 August 2023 Mark the Line Between the Elected Government and the Lieutenant Governor

Delhi is the only Union Territory whose elected Assembly and Council of Ministers the Constitution itself requires, a point a five-judge Constitution Bench of the Supreme Court made on 11 May 2023. The requirement is Article 239AA, in force since 1 February 1992. A Union Territory is a part of India that the Union runs instead of a state government, and Article 239 says that unless Parliament provides otherwise the President administers each one through an administrator, within India’s union of states. In Delhi that administrator is the Lieutenant Governor, and the line between his powers and those of the elected government reached the Supreme Court in 2018, 2023 and 2024.

Each side’s case below comes from the judgments, the 2023 Act of Parliament and its Statement of Objects and Reasons.

What Article 239AA gives Delhi, and what it keeps with the Union

The 69th Amendment inserted Articles 239AA and 239AB with effect from 1 February 1992, according to the Legislative Department’s edition of the Constitution. Clause (1) renamed the Union Territory the National Capital Territory of Delhi and designated its administrator the Lieutenant Governor. Clause (2) provides a Legislative Assembly whose members are chosen by direct election, with Parliament setting the number of seats by law. Today it has 70 seats, 12 of them reserved for Scheduled Castes, and the final electoral roll of 6 January 2025 listed 1,55,37,634 electors, about 1.55 crore, according to the Election Commission. Delhi also sends seven members to the Lok Sabha and three to the Rajya Sabha, and under the Explanation to Article 54 its elected Assembly members vote in the election of the President.

Delhi’s Assembly may make laws on the State List and the Concurrent List except three subjects: Entry 1 (public order), Entry 2 (police) and Entry 18 (land), along with Entries 64 to 66 (offences, courts and fees) insofar as they relate to those three. Our piece on the Seventh Schedule explains the lists. Parliament keeps the power to make laws on any matter for the territory. If an Assembly law clashes with a Parliament law, Parliament’s prevails, unless the Assembly’s law was reserved for the President and received his assent, and even then Parliament can legislate on the same matter later (clause 3).

Clause (4) covers the executive. A Council of Ministers of no more than ten per cent of the Assembly’s members, so seven of 70, with the Chief Minister at its head, aids and advises the Lieutenant Governor on matters the Assembly can legislate on, “except in so far as he is, by or under any law, required to act in his discretion”. Under clauses (5) and (6), the President appoints the Chief Minister and, on the Chief Minister’s advice, the other ministers, and the Council answers collectively to the Assembly.

If the Lieutenant Governor and the ministers differ on any matter, he refers it to the President and acts on the President’s decision. When he thinks a matter urgent, he may act at once while the reference is pending. Article 239AB adds that the President may suspend provisions of Article 239AA if the territory’s administration cannot be carried on under it, or if suspension is “necessary or expedient”; the state counterpart is Article 356.

How an elected government came to Delhi

Delhi was a Part C State under the Government of Part C States Act 1951, with a legislature and a Council of Ministers, according to the 2023 judgment. The Constitution (Seventh Amendment) Act 1956 ended Part C and created Union Territories run by the President through administrators. In 1966 the Delhi Administration Act created a Metropolitan Council of 56 elected members, plus five whom the Centre nominated, with the right to discuss matters and make recommendations, as the 2018 judgment records.

The Union appointed the Balakrishnan Committee on 24 December 1987. The committee recommended that Delhi stay a Union Territory with a Legislative Assembly and a Council of Ministers responsible to it, and that the arrangement go into the Constitution to give the capital “a special status among the Union Territories”. The 69th Amendment’s Statement of Objects and Reasons records those recommendations. The Court noted in 2023 that Article 239A, which covers Puducherry, says Parliament “may” create a legislature there, while Article 239AA creates Delhi’s in the Constitution itself.

What the 2018 ruling settled

A five-judge Constitution Bench gave three opinions on 4 July 2018 in Government of NCT of Delhi v. Union of India. The majority, written by Chief Justice Dipak Misra for himself and two colleagues, called Delhi’s status “sui generis, a class apart”. It held that Delhi cannot be treated as a State, and that the Lieutenant Governor is not a Governor but remains an administrator “in a limited sense”.

As to how the two work together, the majority held that the Lieutenant Governor is bound by the Council of Ministers’ aid and advice unless he refers a matter to the President, and that the words “any matter” in the proviso to clause (4) cannot be inferred to mean “every matter”. Ministers must keep him informed of decisions, but the majority held that his concurrence is not required. The Union has exclusive executive power over the three excluded subjects, and the Council has it over the rest.

A state Governor acts on advice except where the Constitution requires discretion, as our piece on what a Governor does explains. The Lieutenant Governor’s discretion arises wherever “any law” requires it, a point the Court restated in 2024.

The services question, 2015 to 2023

“Services” is Entry 41 of the State List, “State public services; State Public Service Commission”, and decides who posts, transfers and disciplines officers, including those of the IAS and other All India Services, which our piece on the civil services describes. A Ministry of Home Affairs notification of 21 May 2015 directed that the Lieutenant Governor would exercise the Central Government’s powers on public order, police, land and services, as delegated by the President. It reasoned that Delhi has no State public services of its own. The Delhi High Court upheld it on 4 August 2016. A two-judge bench referred the appeals to a Constitution Bench on 15 February 2017.

After the 2018 ruling, two judges decided the appeals on 14 February 2019 and differed on whether services fall outside the Assembly’s and the government’s domain. In March 2021 Parliament amended the 1991 Act so that “government” in any Assembly law means the Lieutenant Governor, PRS records. A three-judge bench sent that single question to a larger bench on 6 May 2022, and five judges decided it on 11 May 2023.

The Union’s case, as the judgment records it, had two parts. First, Entry 41 cannot apply to a Union Territory because it cannot have a State public service or a State Public Service Commission. Second, Delhi’s position as the national capital means the Union must control services to meet its national and international responsibilities. For Delhi, counsel argued that the Assembly can legislate on every State List entry except the three named, that the phrase “insofar as any such matter is applicable to Union Territories” opens entries to it instead of closing them, and that Part XIV of the Constitution, which governs services, extends to Union Territories.

Five judges signed one judgment. It held that no uniform class of Union Territories exists and that Delhi is sui generis, that the Assembly’s competence covers the State and Concurrent Lists apart from the excluded entries, and that executive power is co-extensive with legislative power. Because the General Clauses Act 1897 definition of “State” applies to Part XIV of the Constitution, Part XIV on services reaches Union Territories, and Delhi has legislative and executive power over Entry 41. That power stops short of services connected with public order, police or land. On services, the Lieutenant Governor is bound by the Delhi government’s decisions, and references to “State Government” in the All India Services and joint cadre rules mean the Delhi government.

Parliament’s reach stayed intact. The judgment held that Parliament has competence over every entry in Lists II and III for Delhi, and that the Delhi government’s executive power is subject to any executive power the Constitution or an Act of Parliament gives the Union. In the Court’s words, “the involvement of the Union of India in the administration of NCTD is limited by constitutional provisions”.

What the 2023 Act does

Eight days later, on 19 May 2023, the President promulgated an Ordinance under Article 123. Its Section 3A removed Entry 41 from the Assembly’s competence, according to the Court’s order of 20 July 2023. Parliament replaced the Ordinance with the Government of National Capital Territory of Delhi (Amendment) Act, 2023. The Bill was introduced in the Lok Sabha on 1 August, passed there on 3 August and in the Rajya Sabha on 7 August, per PRS Legislative Research. Assent came on 11 August 2023, as Act 19 of 2023, and the Act is deemed in force from 19 May 2023. The Act as passed contains no Section 3A, and PRS’s comparison table lists the removal of Delhi’s competence over services as an Ordinance provision the Bill dropped.

Part IV-A, inserted into the 1991 Act, creates a National Capital Civil Service Authority with the Chief Minister as chairperson and the Chief Secretary and the Principal Home Secretary as members. The Authority decides by majority, with a quorum of two. The Act defines the Chief Secretary as the officer the Central Government appoints, and PRS notes that the Centre appoints both secretaries. The Authority recommends to the Lieutenant Governor on transfers, postings, vigilance and disciplinary matters for Group A officers of the All India Services other than the Indian Police Service, and for officers of DANICS, a civil service common to Delhi and several other Union Territories. Officers serving on public order, police or land are left out of its remit.

The Lieutenant Governor may call for material and, recording his reasons in writing, return a recommendation for reconsideration; “in case of difference of opinion”, the Act says, his decision is final. Section 41 now says “sole discretion”, and the Act lists matters, including the Delhi government’s relations with the Central Government, that ministers must submit to him for his opinion before issuing orders.

The Union gave its reasons in the Bill’s Statement of Objects and Reasons. The capital houses the President, Parliament, the Supreme Court and foreign missions, the statement says, and “the entire nation is vitally interested in the governance of the National Capital Territory of Delhi”. A parliamentary scheme was needed to “balance both local and national interests”, and the statement cites Article 239AA(3)(b) and clause (7), under which Parliament may make laws to give effect to or supplement the article.

The Delhi government’s objections, as the Court recorded them in July 2023, were that the Ordinance in effect amended Article 239AA(3)(a), took day-to-day administration from the elected government, and that clause (7)(b) gives Parliament no wide power to abolish the governance scheme in Article 239AA. PRS Legislative Research, an independent body, wrote that the Authority’s two central appointees could outvote the Chief Minister and that this may break the “triple chain of accountability” the 2023 judgment described: officers answer to ministers, ministers to the legislature, the legislature to voters.

What the record shows after August 2023

A three-judge bench dismissed the Delhi government’s application to stay the Ordinance on 20 July 2023. Parliament’s power to give the Union executive power over services was not in contention, the bench noted, and what remained was whether this exercise of the power was valid. It referred two questions to a Constitution Bench: the contours of Parliament’s power under Article 239AA(7), and whether that power can abrogate the principles of governance set for Delhi. LiveLaw reported on 9 July 2024 that the Delhi government had asked for an early hearing, saying the law was causing problems on the ground.

The Lieutenant Governor ordered the transfer and posting of more than 30 IAS officers on 17 October 2024, which Press Trust of India reported followed a meeting of the Authority held through circulation.

The Court ruled on a separate point on 5 August 2024. The Lieutenant Governor had nominated ten members to the Municipal Corporation of Delhi on 3 January 2023, under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act 1957, without ministers’ advice. Dismissing the Delhi government’s petition, the Court held that this is a statutory duty given to him by a law of Parliament, so it falls within the clause (4) exception for matters where “any law” requires him to act in his discretion.

A bench led by the Chief Justice allowed the Delhi government to withdraw seven petitions on 23 May 2025, including the challenge to the 2023 Act. An Additional Solicitor General appearing for the Delhi government told the court the newly formed government had decided to withdraw them, adding that “these matters should not trouble this court anymore”, LiveLaw reported. The petition that carried the two referred questions ended without an answer to either.