Delhi: Statehood and Beyond - RSTV: The Big Picture

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Anchor: Franck Rausan Pereira

Guests – B.P. Singh, Former Governor & Home Secretary, P.K. Malhotra, Former Secretary, Ministry of Law and Justice, GoI, Justice Jaspal Singh, Former Judge, Delhi High Court, Shekhar Iyer, Senior Journalist

Importance of this Episode:

  • In a landmark verdict on the power tussle between the Delhi government and the Centre, a five-judge bench of the Supreme Court unanimously held that Lieutenant Governor Anil Baijal does not have independent decision-making powers, and is bound to act on the aid and advice of the Council of Ministers.
  • The judgement pronounced in the court by Chief Justice Dipak Misra, who was heading the Constitution bench, also held that the LG cannot act as an “obstructionist”.
  • In three separate but concurring judgements, the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said there is no independent authority vested with the LG to take independent decisions.
  • It said all decisions of the Council of Ministers, who are elected representatives of the people of Delhi, must be communicated to the LG but that does not mean his concurrence is required.
  • This edition of ‘The Big Picture’ analyses the Apex Court’s judgment on the power tussle in Delhi and its implications.

Analysis by the Experts

Is the debate over who Delhi’s boss is, is now finally over?

  • P.K. Malhotra, Former Secretary, Ministry of Law and Justice, weighed in with his arguments.
  • The issue was clear earlier as well, but because of a different part being in power at the Center and a different party being in power at the state level, there would have been a confusion regarding the interpretation of the provisions of Article 239AA under which the National Capital Territory (NCT) of Delhi was constituted and the provision for assembly was made.
  • In the present judgement what the Supreme Court has done is, it has simply interpreted the provision of 239AA, but as far as the main issued for which the parties had gone to the Supreme Court in the first place is concerned, they are yet to be decided by the concerned division benches.
  • It is the interpretation of Article 239AA which has clarified the position by the Supreme Court that Delhi, although a Union Territory, which falls in schedule 1, but a special status has been carved out because of the Article 239AA which was substituted in the year 1991, whereby the Delhi Government, having the legislative assembly, enjoys almost all the powers which state assemblies in a state enjoys, except 3 subjects, which is: public order, police, and land. So as far as these three matters are concerned, the control still remains with the Central Government. But, in the rest of the matters, the Delhi Government enjoys all the powers of the state government. The procedure to be followed would be the same as it is followed in the exercise of powers by the state government vis-à-vis the Governor of the state.
  • The rider that has been put is that in case the Lieutenant Governor has a serious doubt on a policy matter (matters of importance and not those that are trivial), be referred to the Central Government.  There was a policy paralysis in a way so far as the functioning of the Delhi Government is concerned. With this clarification which the Supreme Court has now given, the people of Delhi will be benefitted and the Delhi Government would start functioning in the way it is expected to function. Thus, the people of Delhi would be benefitted.   

One of the major allegations against a Lt. Governor is that he acted unconstitutionally- that he didn’t follow the constitutional mandate and that he also exceeded his brief. Was this the case?

  • B.P. Singh, Former Governor & Home Secretary, weighed in with his arguments here.
  • We have to realize that democratic governance in India is only 7 decades old. The Constitution is quite clear- that under Article 239AA, there are only 3 subjects, i.e. land, police and public order which the Lt. Governor is responsible, and he is responsible to the Union Home Ministry. Further, the directions of the Union Home Ministry are binding on the Lt. Governor. But the Lt. Governor also has a solemn responsibility to work in a harmonious manner with the state government which has powers in respect of other subjects, such as Education, Health, and the delivery of other services. This is what is vital for the people.
  • Further, what happens in Delhi is showcased around the world. Further, it doesn’t augur well for a country like India where a sitting Chief Minister sits on a “dharna”. Especially the “dharna” inside the house of the Lt. Governor, and that too by the Chief Minister and his Ministers. Such incidents are unprecedented. This isn’t the way the Constitution would expect anyone to behave.
  • Fortunately, the Supreme Court has come out with a clear verdict- that the Lt. Governor is bound by the aid and advice of the Chief Minister and his/her council of Ministers.

The Constitution is very clear as to what the role of the Lt. Governor is. That having being said, why did the Delhi High Court think otherwise?

  • Justice Jaspal Singh, Former Judge, Delhi High Court weighed in with his arguments here.
  • It is believed that now since the Supreme Court has given its verdict, it is immaterial to keep in mind as to what the High Court has said. This is because the judgement of the Supreme Court is final. The fact remains that the Aam Admi Party (AAP) which was the petitioner has gained certain clarifications. For example, the Lt. Governor is not a Governor in the constitutional sense. He is only an administrator. The Supreme Court has also made it clear that the State Assembly has all the powers to legislate, except those subjects which are excluded. But there are concerns with regards to the proviso to clause (4) of Article 239 of the Constitution which provides that the Governor, or the Lt. Governor, in this case, has the power to refer the dispute to the President. What the Supreme Court has said may create a bit of confusion here. This is because; it implies that in difference of opinion, on any matter, the Lt. Governor has the powers to refer the matter to the President of India.
  • The question arises, is the question “any matter” the same as “every matter”? The Supreme Court has laid down that “any matter” is not the same as “every matter”. To that extent, the judgement is welcome. But when the fine print of the verdict is read, we realise that again everything is left to the Lt. Governor as it is left to him to decide whether there exists a valid ground or not for a difference to exist. The judgement further mentions that while exercising that power, the Lt. Governor has to keep in mind constitutional trust and morality. These terms are again extremely vague as far as law is concerned. That means that the Supreme Court has left many things unsaid, and rather has given all the powers to the Lt. Governor to decide as to whether there is a difference of opinion and whether he should refer the matter to the President or not. Thus who is going to bell the cat at that stage?
  • We know what has been happening- here is a Lt. Governor who would not like to meet the Chief Minister- an elected Chief Minister of the state. What stops the Lt. Governor from saying, “I have a difference of opinion on this matter, thus I will refer the matter to the President.”

Is it too early for the Aam Admi Party to celebrate?

  • Shekhar Iyer, Senior Journalist weighed in with his arguments here. The Aam Admi party is claiming victory because what it was seeing as a restriction which the Lt. Governor was imposing has now been clearly addressed. But the more interesting part of the Supreme Court judgement is that it is referring to the governance of the AAP in particular and the Chief Minister himself.
  • It reads that, “it is argued that one can be a rational anarchist, but the said term has no entry in the field of constitutional governance and rule of law”. In the past, one notes the instance where Arvind Kejriwal, the Chief Minister of Delhi mentioned that he was an anarchist. The AAP was unwilling to accept that Delhi is a Union Territory, and that it is not a full-fledged state. A lot of the clashes that we have seen between the elected government in Delhi and the present Lt. Governor as well as the previous Lt. Governor was on the subjects of public order, police, and land; although it was known very well that these subjects were not within the domain of the state government.
  • Thus on one hand the Lt. Governor has been told that he/she cannot oppose everything for the sake of opposition, and on the other hand, it is important to note whether or not this judgement would have a sobering effect on the kind of politics that has been prevailing in the region. It is clear now that Delhi is not a full-fledged state. So the AAP would have to first internalize this fact that Delhi is a Union Territory. Now there is a case in itself of making Delhi a full-fledged state, and equally, there are arguments as to why Delhi cannot be a full-fledged state.

Should Delhi be given complete statehood? What are the arguments for and against this?

P.K. Malhotra, Former Secretary, Ministry of Law and Justice, GoI weighed in with his arguments here.

  • Firstly, it is not a question of victory or defeat of any party. The Supreme Court of India very clearly given the guidelines and laid down the law that Constitution is supreme and that every functionary under the constitution has to function within the parameters laid down by the constitution for its functioning. This is a very clear message to all the three organs of the state. So far as granting statehood to Delhi is concerned, it is important to note that whichever party has come to power, be it BJP, INC , be it AAP or any other party, everyone when they were ruling Delhi has said that Delhi should be granted a statehood. But we need to look at the background of the issue.
  • When Delhi was declared as a National Capital Territory (NCT) in 1991, by way of a Constitutional Amendment, the concept was very clear, and that is that when Delhi is the seat of the Central Government, there cannot be two authorities. Also, when we look at examples from the world over, the practice is the same. Example: Washington DC. In Washington, there is only a mayor. There isn’t an elected government there. A similar kind of system is needed here.
  • The Supreme Court has clarified on the powers vested in the Chief Minister of Delhi and that vested in the office of the Lt. Governor. It is hoped that the kind of difference in opinion that we have been seeing between the Central Government and the state government would not arise again. It is also felt that some discretion has to be given to a constitutional authority to come to a conclusion whether it is a matter which should go to the President of India for his advice or that the Lt. Governor can take a decision at his level. When a constitutional functionary is taking a decision, it is expected that he/she will be applying his/her wisdom and that he/she will not be referring most matters to the President.

Does the Supreme Court judgement open up a Pandora’s box?

B.P. Singh, Former Governor & Home Secretary weighed in with his arguments here.

  • The judgement is a victory for everyone. It clarifies very clearly the constitutional position. Suppose the state passes a bill within its legislative jurisdiction, and then it goes to the Lt. Governor for assent; now any subject may have a bearing on land, it may have a bearing on the country’s image, it may have a bearing on language, etc. Thus, if the Lt. Governor feels in his wisdom that the matter needs to be referred elsewhere, he should pass it on to the Home Ministry. If the Home Ministry in consultation with the Ministry of Law and Justice, and everyone concerned; then the Chief Minister and the Government in Delhi is advised to modify the bill. Thus, there is nothing wrong with this approach. Everyone Lt. Governor in Delhi is found to be overworked as the Delhi Development Authority (DDA), the office of the Delhi Police Commissioner, etc. functions under his office. The Supreme Court judgement needs to be welcomed as we need to ensure that democracy functions in this country as we have no other alternative than a well-functioning democracy in our diverse nation, and that we have to function in a very non-partisan manner.
  • There is ambiguity as far as this judgement was concerned. What do you believe is the best way forward to deal with this problem? At the end of the day, we want to see the elected government perform and we also want to see the constitutional head also perform his/her duties.
  • The impression one gets after going through this judgement is that as far as the state government of Delhi is concerned, the constitutional position was very clear right from the day one. The only person who would be laughing up his sleeves is the Lt. Governor. This is because he has been given all leverage. The judgement says that, there has to be some valid ground to refer matters to the President, in the case of a difference of opinion. Now, who is to decide that there exists a valid ground for a difference to exist? It is the Lt. Governor. Who can challenge his decision? No person can, unless and until one goes to the court again.

What are the political implications of this judgement?

Shekhar Iyer, Senior Journalist weighed in with his arguments.

  • He believes that the time has come for us to realize that Delhi which has a growing population of 2.7 crore people, as of today, is no longer just a Union Territory. The kind of population explosion and pressures that are building on the National Capital Region would require ways to look and answer the following questions: Are we getting the best administration and governance mechanisms in this place? It is important to look at the model which Washington D.C. has adopted. In Delhi, issues such as housing, water, electricity, transport, etc. and all this requires much more than simply a battle between the Lt. Governor and the Chief Minister.

It has been suggested that we need a new model of governance as far as the National Capital is concerned? What could that model possibly be?

P.K. Malhotra, Former Secretary, Ministry of Law and Justice, GoI weighed in with his arguments here.

  • Like how Washington D.C. has been carved out of the state of Virginia, a similar kind of an example can be created here also. One can possibly carve out the New Delhi area as the seat of the Central Government, and the rest of it can be made a state if that is taken as a matter of policy. But there are many other issues also connected to this and one of the main issues which triggered all this litigation was the notification or the order issued by the ministry of home affairs in May 2015, which empowered the Lt. Governor to take final decisions on many issues, including matters relating to services.
  • The Supreme Court has given its judgement only on the interpretation of Article 239AA which defines the power of the Lt. Governor as well as the State Government. The matter will again go back to the concerned benches of the Supreme Court and the view that they will be taking in the individual petitions which are pending before these benches, following the judgement given by the Constitutional bench of the Supreme Court is yet to be seen because that will really set the tone as to what would be the relations between the Lt. Governor and the Chief Minister or the elected government.

B.P. Singh, Former Governor & Home Secretary, gave the concluding remarks of the programme.

  • He was in Washington D.C. for three years and has seen how the system in the U.S. functions. It is possible to have that kind of a system in India also, but in India, the areas have to be earmarked. This is a very sensitive job. Nobody- no political leader be it a Chief Minister or an opposition leader wants to leave Delhi. The way out is to work with the existing system and improve the delivery of services.


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