Baba’s Explainer – Delhi – Centre Power Tussle

• The Government of India appointed on 24-12-1987 a Committee headed by Balakrishnan to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up.
• After such detailed inquiry and examination, it Balakrishnan 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.
  • 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.
• Reasoning for suggesting legislative assembly for Delhi is as follows
  • With the population influx in the capital city, it was pointed out that an effective representative democratic system needs to be implemented to safeguard the rights of a large population.
  • The absence of a fully empowered Legislative Assembly, entrenches an unaccountable form of government for the citizens residing in the capital city.
• Article 239 AA was inserted in the Constitution by The Constitution (69th Amendment) Act, 1991 to give Special Status to Delhi.
  • With this, Delhi was constitutionally given the title of “National Capital Territory of Delhi” and would be administered by a Lieutenant Governor (LG) who was to be appointed by the President.
  • It says that the NCT of Delhi will have Legislative Assembly.
  • Legislative assembly has the power to make laws on state list and concurrent list except on the subject of police, public order, and land.
  • Laws cleared by the Delhi assembly are routed to the President for his assent through the office of the L-G.
  • Subjects under the Delhi’s government’s jurisdiction include education, health care, fire services, public buses, water supply, electricity and social welfare.
  • Article 239AA(4) provided a mechanism for referring the matter to the President in case of a difference of opinion between the Lt. Governor and the Council of Ministers.
• Currently, Delhi has a 70-member assembly whose members are elected by the residents of the city. The political party with majority in the assembly forms the local government.
• Similarly, there are civic agencies which are independent of the city government. They include the three municipal corporations in the city in which leaders are elected through separate elections, a cantonment board and a municipal council that is in charge of the central area that houses the Parliament and Union government offices.
• There are two things that make Delhi distinct from a state.
  • One, the excluded items under State list, i.e. item 1 (Public Order) ,2 (Police), and 18 (Land), on which the Delhi Legislative Assembly cannot make laws, are not restricted in states.
  • Two, Parliament has concurrent legislative power over other items in the State list for the territory of Delhi as well.

• Given that national capitals house critical infrastructure such as parliament, presidential estates, defence and foreign missions, most governments maintain strategic control over the city’s critical services like land and public order.
• Washington DC has a municipal corporation whose powers are curtailed by the federal government, which can overturn local laws and even approves the local budget.
• Canberra (Australia’s Capital) is run by an assembly which doubles up as a local executive but cannot make laws on subjects that include establishment of courts, police services and securities industry.

• The crux of the tussle relates to the extent of powers of the Lt. Governor and the elected Chief Minister of Delhi under Article 239AA.
• There has also been repeated attempts made by political parties of all hues for granting full statehood for Delhi. However,
• There are frequent frictions between the elected government in Delhi and the Union government which intervenes through the L-G – especially at times when two opposing political parties are in charge of the two governments.
• The incessant frictions in the power sharing structure between the Central and state government is not only disruptive, but also slows down the development story of Delhi
• The Delhi High Court in a judgment delivered on August 4, 2016 held that all proposal for legislation for policy changes of Delhi government must have the prior approval of the Lt. Governor. This was however appealed to Supreme Court.
  • Delhi government had argued that this interpretation of the HC reduces Delhi to a department of the Union of India, effectively nullifying the utility of elected legislative assembly.
• In 2018, the Supreme Court’s intervention brought some clarity and helped reduce the power tussle.

• A five-judge Constitution Bench confined itself to the interpretation of Article 239AA, and left individual issues to be decided by regular Benches.
• In a judgment, the top court said that the L-G is bound by the aid and advice of the elected government in Delhi except for matters pertaining to land, police and public order.

Subsequently Supreme Court gave Judgements on Individual Cases:

• Jurisdiction of the Anti-Corruption Branch (ACB) of the Delhi government to investigate officers of Central government
  • The Supreme Court has stated that the anti-corruption bureau is under the exclusive authority of the lieutenant governor and Delhi government has no power in this regard.
  • SC also said that ACB is not empowered to investigate the offenses of Central Government employees under the Prevention of Corruption Act. Admittedly, this investigation is carried out by the CBI. Therefore, it leads to a conflict of jurisdiction as well.
• Power to set up Commission of Inquiry
  • SC has held that the Delhi state government has no power to set up an inquiry commission to probe corruption cases.
• Control of Services in National Capital
  • In Feb 2019, the Two-Judge bench differed on the issue of control of services in the national capital.
  • Justice Sikri said that to facilitate smooth governance in Delhi, transfer, and posting of secretaries and Head of Departments can be done by Lieutenant Governor (LG) while in case of officer of Delhi, Andaman and Nicobar Islands Civil Service (DANICS) and Delhi, Andaman and Nicobar Islands Police Service (DANIPS), the files need to be sent from the council of ministers to the LG.
  • Justice Bhushan, however, differed with the opinion expressed by Justice Sikri and said that under the law, the Delhi government has no power to exercise control over services.
  • After the difference of opinion on the issue of control of services, the bench decided that the matter needs to be referred to a larger bench.

• The first arises from a reference made by a two-judge Bench in 2019 over who will have control over the administrative services
• The Bench also has before it the Delhi government’s petition challenging the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Act 2021.
  • The act provided that the term “government” referred to in any law made by the Legislative Assembly of Delhi will imply the Lieutenant Governor (L-G).
  • While the AAP (ruling party of Delhi government) asserts that the new Bill of the central government essentially overturns the Supreme Court judgment, the BJP (ruling party of Centre) claims it is aimed at bringing more clarity in Delhi’s administration.

More details on the act & opposition by Delhi government is given below

• Having a powerful local government in a national capital is not incompatible with the national interest. It is a question of political culture.
• In Washington DC and Australian Capital Territory of Canberra, sub-national powers are indeed curtailed. But there are clear structures in place.
• What Delhi needs is more clarity (here comes the significance of the Judiciary).
• Its chief minister is a visible leader. It comes down to whether the national government and political parties have the maturity to be comfortable with federalism generally, and with strong local leadership in the national capital, in particular.