GS-2: Structure, organization and functioning of the Executive; Issues and challenges pertaining to the federal structure
Context: In the aftermath of election of the Mayor and deputy Mayor of the Municipal Corporation of Delhi (MCD), AAP has accused the LG of issuing orders on “practically everything” and bypassing the elected government.
How has the legal status of Delhi evolved in last one century?
Before Independence, Delhi was a part of the province of Punjab, and was annexed to it under the Government of India Act, 1858.
In 1911, Delhi not only became the capital of India, and the Delhi tehsil was separated from Punjab, and became a Chief Commissioner’s Province.
The first specific law to govern Delhi came into the picture in 1912, where the Delhi Laws Act came into force, and as an effect, the Chief Commissioner was empowered to determine application of laws by issuing appropriate notifications.
With the Government of India Act, 1919, and Government of India Act, 1935, Delhi was retained as a centrally administered territory.
The 1935 Act, however, did attempt to decentralise powers to a federation but given that the decentralisation was still subject to the final consent of the Viceroy it was rejected by the Indian National Congress as a form of unacceptable diarchy.
Just before the country gained independence, the Pattabhi Sitaramiyya Committee gave its report about the required changes in the administrative set up of Chief Commissioners’ Province in the Constitution. With specification to Delhi, it was suggested that
Delhi would not be fragmented into Old and New Delhi, but kept intact with Central Government enjoying certain special powers.
The High Court for Delhi was recommended to exercise both original, and appellate jurisdiction.
For the governance arrangement, Delhi, along with Coorg, and Ajmer-Merwara, was suggested to function under a Lieutenant Governor, to be appointed by the President, but along with the administration by a Council of of Ministers, responsible to the elected Legislature,
In 1950, when the Constitution of India came into force, all the provinces of Chief Commissioners became Part C states. With the enactment of the Government of Part C States Act, 1951, the Legislative Assemblies in these states was empowered to make laws on all matters except, public order, police, constitution.
In 1952, the legislative assembly of Delhi came into existence. The structure of this assembly was directly elected unicameral legislature with reservation of seats for scheduled castes
With the passing of the State Reorganisation Act, 1956, the Indian states were limited to being “States and Union Territories”, eliminating the previous system of system of Part A, B, C, and D States.
While States were governed by a Council of Ministers appointed through elected representatives from the Legislative Assemblies; Delhi, like other Union Territories had an “Administrator” appointed by the President.
Delhi Administration Act, 1966 was especially enacted for to provide it with limited representative government through metropolitan Council, comprising of 56 elected members and five nominated members.
What is the present status of Delhi?
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.
How are capitals governed in other parts of the world?
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.
What is the tussle between Centre & Delhi?
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.
What is the latest flashpoint between Delhi CM and Lt. Governor?
The LG appointed Satya Sharma, a BJP councillor, to preside over the mayoral polls issuing a gazette notification for the same.
The AAP alleged that the LG had bypassed the tradition of nominating or appointing the senior-most councillor as the presiding officer and has also bypassed the elected government’s recommendation.
The LG also nominated 10 aldermen to the MCD who were persons who needed to have “special knowledge or experience in municipal administration”.
The General Body of a Municipality or Municipal Corporation constitutes of elected representatives called Councillors. Councillors can nominate eminent personalities of the city to become the members of the this body. These nominated members are called ‘Aldermen
The AAP said that the aldermen had political links to the BJP and accused the LG of giving them voting rights in the mayoral polls, which is prohibited according to the Delhi Municipal Corporation Act, 1957.
Also, Delhi CM has accused LG of issuing orders on “practically every” subject directly to the Chief Secretary who gets them implemented, completely bypassing the elected government.
Delhi CM has that barring the three reserved subjects of police, public order and land, executive control over all other subjects (transferred subjects) lies with the elected government but the LG has been issuing orders on these subjects and having them implemented by the bureaucracy.
What is Lt. Governor’s viewpoint?
Replying to the accusations, LG said that there are Constitutional provisions, Statutes and Acts that outline the multi-layered scheme of administration in the National Capital Territory (NCT) of Delhi that emanated out of serious deliberations in the Constituent Assembly, State Reorganisation Commission, and Parliament of India, interpreted by various Supreme Court judgments.
LG said that these decisions were taken by him as he was the “administrator of NCT of Delhi”.
The LG and the Chief Minister are supposed to have weekly meetings every Friday. However, since October 2022, these meetings have not taken place with the LG accusing the Chief Minister of not being available as he was busy with election campaigns in other States.
What are the other flashpoints?
Secretary, Information and Publicity, Delhi Government, has issued a notice to the Convenor of AAP to recover ₹164 crore spent on political advertisements of the Delhi Government that were published in the garb of government advertisements.
Deputy Chief Minister said that the Central government was misusing its control over officers through the “services department” to target AAP and its leaders in false cases.
The LG also sent back a file from the government seeking permission to send teachers from Delhi government schools on an international teacher training programme to Finland, asking for a cost-benefit analysis.
The Delhi Government saw this as a direct attack on its education model questioning why the LG was not approving a proposal that has been made by the elected government which had won a clear majority
The LG’s office said it had not stopped the proposal but had asked for a cost-benefit analysis
What is the way forward?
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.
Main Practice Question: What are the frequent flashpoints between Delhi CM & Lt. Governor? What institutional measures do you suggest to resolve these?
Note: Write answer his question in the comment section.
