Context: The Supreme Court of India recently turned down an appeal by the Delhi government to reject the bail granted to an activist, accused in a case related to the Delhi riots.

The issue:

  • Division of powers between Delhi-Centre in matters of prosecution:
    • Power to appoint special public prosecutors: The Supreme Court had in 2019 ruled that the elected government has the legislative competence to appoint prosecutors under Article 239AA of the Constitution.
    • Lt Governor’s power in this regard: Invoking Article 239AA(4), the L-G can indeed refer to the President's matters on which s/he fails to arrive at a consensus with the elected government. 
      • When a dispute arose between the Centre and the Delhi government over the appointment of lawyers to argue the riot-related cases in courts the incumbent L-G of Delhi referred the matter to the President.
      • Though the elected government issued a statement criticising L-G, it did not challenge the decision in the higher courts. 
  • The Supreme Court verdict on division of powers:
    • The three areas in which the Delhi government will have powers:
      • Appointment of special public prosecutors or law officers.
      • Fixing land revenue rate.
      • Power to appoint or deal with the electricity commission or board.
    • Powers given to the Centre:
      • Delhi Anti Corruption Branch (ACB) cannot probe central government employees.
      • The Centre has the power to appoint an Enquiry Commission.
    • The undecided issue which has been referred by the apex court to larger bench:
      • Control over service matters involving transfers and posting of officers.

Background - The 69th Amendment Act, 1992:

  • Articles 239AA and 239AB: The act added two new articles under which the Union Territory of Delhi has been given a special status.
  • Article 239AA: It provides that the Union Territory of Delhi shall now be called the National Capital Territory of Delhi and its administrator shall be known as Lt. Governor.
    • It also creates a legislative assembly for Delhi which can make laws on subjects under the State List and Concurrent List except on these matters: public order, land, and police.
  • Article 239AB: It provides that the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article. This provision resembles Art.356 - The President’s Rule.
    • It also provides for a Council of Ministers for Delhi consisting of not more than 10% of the total number of members in the assembly. 
Image Source: TH