Quick answer
In Government of NCT of Delhi v. Union of India (4 July 2018), a five-judge Constitution Bench held that under Article 239AA(4) the Lieutenant Governor (LG) of Delhi is bound by the aid and advice of the elected Council of Ministers on matters within the Delhi Assembly's legislative power, unless he refers a difference of opinion to the President under the proviso. That proviso is an exception for real differences, not a licence to refer "every matter". At the same time Delhi is not a State: public order, police and land remain with the Union.
The case
Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501, Supreme Court of India, 4 July 2018. Bench: Dipak Misra, CJI (for himself, A.K. Sikri and A.M. Khanwilkar, JJ), with concurring opinions by D.Y. Chandrachud and Ashok Bhushan, JJ. The appeals arose from a Delhi High Court judgment of 4 August 2016. Held: the LG has no independent decision-making power on transferred subjects; he must act on ministerial advice or implement the President's decision on a reference.
The constitutional text
Article 239AA (inserted by the Constitution (Sixty-ninth Amendment) Act, 1991) lets the Delhi Assembly legislate on State and Concurrent List matters except Entries 1, 2 and 18 of the State List (public order, police, land) and Entries 64, 65 and 66 so far as they relate to them. Under clause (4), the Council of Ministers aids and advises the LG; on a difference of opinion "on any matter" the LG shall refer it to the President.
Main conclusions of the majority
- Delhi cannot be given the status of a State; its status is sui generis (a class apart), and the LG is an Administrator, not a Governor.
- The executive power of the Delhi Government is co-extensive with the Assembly's legislative power; the Union has exclusive executive power over the three excluded subjects.
- "Any matter" in the proviso does not mean "every matter". The power is an exception for real, reasoned differences; the LG should not act as an obstructionist.
- Decisions of the Council of Ministers must be communicated to the LG, but his concurrence is not required.
Delhi versus a full State
| Point | NCT of Delhi | A State |
|---|---|---|
| Head | LG, an Administrator under Article 239 | Governor |
| Assembly's legislative field | State and Concurrent Lists minus public order, police and land | Whole State and Concurrent Lists |
| Disagreement with ministers | LG may refer to the President under the Article 239AA(4) proviso | No equivalent provision |
Delhi's Council of Ministers, led by Chief Minister Renu, decides to extend free bus travel in the city. The LG, who has referred every proposal that month, refers this one too without reasons. Under the 2018 ruling this is improper. A decision on police deployment, however, belongs to the Union.
Later developments
- On 11 May 2023 another Constitution Bench held that the Delhi Government has legislative and executive power over "services" (Entry 41, State List), except services relating to public order, police and land.
- Parliament then passed the Government of National Capital Territory of Delhi (Amendment) Act, 2023 (Act 19 of 2023, deemed in force from 19 May 2023). It created a National Capital Civil Service Authority (the Chief Minister, the Chief Secretary and the Principal Home Secretary) to recommend transfers and postings to the LG, and gave the LG "sole discretion" in specified matters.
Compare the general rule in Samsher Singh v. State of Punjab (1974).
Exam point
NCT of Delhi (2018): the LG is bound by ministerial aid and advice under Article 239AA(4); "any matter" is not "every matter"; but Delhi is not a State, and public order, police and land stay with the Union.
Sources and further reading
- Government of NCT of Delhi v. Union of India (4 July 2018), judgment text, Indian Kanoon
- Government of NCT of Delhi v. Union of India (11 May 2023), judgment text, Indian Kanoon
- Government of National Capital Territory of Delhi (Amendment) Act, 2023, Gazette of India
- The Constitution of India (as on 1 May 2026), Article 239AA, Legislative Department
