When the Indian Constitution was adopted, the States of the Indian Union were classified into Part A, Part B, and Part C States. Delhi was a Part C State and was governed by the Government of Part C States Act 1951. The Act provided for a Council of Ministers and a legislature of elected representatives for Delhi with the power of making laws with respect to any of the matters enumerated in the State List or the Concurrent List except for the subjects which were expressly excluded.
The excluded subjects corresponded to those in Article 239AA along with the subject of ‘Municipal Corporations.’ These powers were limited in nature and subject to the legislative power of Parliament.
The Constitution (Seventh Amendment) Act 1956, based broadly on the recommendations of the Fazl Ali Commission and designed to implement the provisions of the States Reorganization Act 1956, inter alia did away with the erstwhile classification of States into Part A, Part B, and Part C States, and Part D territories. Instead, it introduced States and Union Territories. The newly created Union Territories were to be administered by the President acting through an Administrator in terms of Article 239 of the Constitution.
However, it is important to note that the Fazl Ali Commission was alive to the special needs of Delhi and the importance of accounting for local needs and wishes of the residents of NCTD. It noted that:
“593. […] Having taken all these factors into account, we are definitely of the view that municipal autonomy in the form of a corporation, which will provide greater local autonomy than is the case in some of the important federal capitals, is the right and in fact the only solution of the problem of Delhi State.”
Soon thereafter, in 1962, Article 239A was inserted in the Constitution by the Constitution (Fourteenth Amendment) Act 1956. This envisaged the creation of local legislatures or a Council of Ministers or both for certain Union Territories. Thus, a significant change was introduced in the governance structure for Union Territories.
Article 239A created a separate category of Union Territories since all Union Territories were no longer envisaged to be administered only by the President. The introduction of Article 239A was followed by the Government of Union Territories Act 1963. Currently, the Union Territory of Puducherry is administered in terms of the governance structure envisaged by this enactment.
By the Constitution (Sixty-ninth Amendment) Act 1991, Article 239AA was inserted in the Constitution. It introduced a unique structure of governance for NCTD vis-à-vis the Union Territories. The Statement of Objects and Reasons of provides as follows:
“1. … After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence, the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories.
The 1991 Constitution Amendment brought a fresh dimension to the governance of Union Territories. By virtue of the provisions of Article 239AA, NCTD became the only Union Territory with a special status of having a constitutionally mandated legislature and Council of Ministers. This was a departure from the earlier model of governance for Union territories. Article 239AA, in contrast, constitutionally mandates a legislature and prescribes the scope of legislative and executive power for NCTD.
Article 239AA creates a wide variation in structures of governance of NCTD as compared to other Union Territories, with differences even as regards the manner in which legislative powers have been bestowed upon them. For instance, Article 239A provides that Parliament “may” create a legislature for Puducherry.
On the other hand, for NCTD, the Constitution itself (in terms of Article 239AA) has created a Legislative Assembly and a Council of Ministers. The constitutionally coded status of NCTD results in a creation of a significant degree of variance in the governance structure when compared to other States and Union territories.
The concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment expressly discussed this aspect and held that no single homogeneous class of Union Territories exits. Instead, Union Territories fall in various categories:
“453. The judgment of the majority [New Delhi Municipal Council v State of Punjab] also holds that all Union Territories are not situated alike. The first category consists of Union Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963.
The third category is Delhi which has “special features” under Article 239- AA. Though the Union Territory of Delhi “is in a class by itself”, it “is certainly not a State within the meaning of Article 246 or Part VI of the Constitution”. Various Union Territories — the Court observed — are in different stages of evolution…
475.1. The introduction of Article 239-AA into the Constitution was the result of the exercise of the constituent power. The Sixty-ninth Amendment to the Constitution has important consequences for the special status of Delhi as the National Capital Territory, albeit under the rubric of a Union Territory governed by Part VIII of the Constitution.”
This variance in the constitutional treatment of Union Territories as well as the absence of a homogeneous class is not unique only to Union Territories. The Constitution is replete with instances of special arrangements being made to accommodate the specific regional needs of States in specific areas.
Therefore, NCTD is not the first territory which has received a special treatment through a constitutional provision, but it is another example – in line with the practice of the Constitution – envisaging arrangements which treat federal units differently from each other to account for their specific circumstances.
For instance, Article 371 of the Constitution contains special provisions for certain areas in various States as well as for the entirety of some States. The marginal notes to various articles composed under the rubric of Article 371 provide an overview of a number of States for which arrangements in the nature of asymmetric federalism are made in the spirit of accommodating the differences and the specific requirements of regions across the nation:
“371. Special provision with respect to the States of Maharashtra and Gujarat
371-A. Special provision with respect to the State of Nagaland
371-B. Special provision with respect to the State of Assam
371-C. Special provision with respect to the State of Manipur
371-D. Special provisions with respect to the State of Andhra Pradesh or the State of Telangana]
371-E. Establishment of Central University in Andhra Pradesh
371-F. Special provisions with respect to the State of Sikkim
371-G. Special provision with respect to the State of Mizoram
371-H. Special provision with respect to the State of Arunachal Pradesh
371-I. Special provision with respect to the State of Goa
371-J. Special provisions with respect to State of Karnataka”
The design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different states and Union territories, it preserves the local aspirations of different regions. “Unity in diversity” is not only used in common parlance, but is also embedded in our constitutional structure. Our interpretation of the Constitution must give substantive weight to the underlying principles.
As held in Govt of NCT of Delhi v. Union of India (2023)