In 2013, the BJP promised granting full statehood to Delhi in their manifesto before the Assembly elections. In the 2014 general elections, similar to the 1999 elections, the same party promised statehood again. After almost four years, this promise has still not been implemented despite being touted by Dr. Harsh Vardhan (the BJP’s chief ministerial candidate in 2013) as the ‘first demand from the Prime Minister’.
This represents a shift of views, which is not isolated to one party. The Congress and the former chief minister of Delhi, Sheila Dikshit, held the firm belief of granting full statehood to Delhi. But later, she seemed to think that the demand was ‘not realistic’.
The Delhi government’s policy of providing compensation to people affected by frequent power cuts has been approved by the Lieutenant Governor (LG). This makes the ‘discoms’ (distribution companies) pay ₹50 for the first two hours of the cut (excluding then initial hour), and ₹100 subsequently. This policy was also floated in 2015, but was not approved by the LG then.
In light of this policy being approved now (and not 3 years before), I thought it vital to see if it still makes sense to not grant Delhi statehood. I also wanted to investigate if it makes sense that the people of Delhi are not equipped with a government that enjoys the powers of a complete state – and whether the capital of a country can be a state in itself.
Article 239 AA, which was introduced by the 69th amendment to the Constitution, the GNCT Act (1991) and a plethora of judgements around the existence of Delhi are the three basic features which define the role of Delhi and its governance.
Article 239 AA provides for a special provision to Delhi. It has three major, relevant items.
1. It provides for a legislative assembly.
2. The legislative assembly is prohibited to make laws on matters pertaining to the police, public order and land.
3. The LG is the administrator for Delhi – and if there is a disagreement with the Delhi government, the matter is to be referred to the President. However, if the LG thinks that the matter is urgent, they can act on their own will, pending the final decision.
Now, the biggest hurdle in the effective functioning of Delhi is the LG. This has come to light time and time again, mainly because of the present Delhi government. Previously, for 10 years, the same party which was in power at the Centre also governed Delhi.
However, with different political parties in power at the Centre and in Delhi, there’s been a clash in ideologies, differences in policies and separate styles of public governance. That is why we see a contentious relationship that is benefitting no one – and especially not the people of Delhi.
The LG is the administrator of the state as laid down by the article. However, the elected Delhi government shall aid and advise the governor on matters under the government.
The first question to be asked is – is this advice binding or discretionary?
The GNCT Act (1991), under Section 41, lays down when LGs can act on their own. These are – the powers falling outside the purview of the legislative assembly, but which have been given to them by the President, and those prescribed by any other law. Under Section 44, the law also says that the President can frame the procedure to be adopted if there is a difference of opinion between the Council of Ministers (Cabinet) and the LG.
The second question is – can these provisions be misused?
There are numerous reasons against giving statehood to Delhi. The major one is that Delhi is the capital of the country – and like many other capitals which house the national government, it must lack the full-fledged autonomy that other states/provinces do, that is, international precedent.
Another objection is that the budget of the Delhi government would balloon if it has to take over the expenses of the Delhi police and the Delhi Development Authority (DDA). Without the generous subsidies of the Centre, will it have the ability to finance its needs as a state? Or will the average Delhi citizen face higher taxes on petrol, higher stamp duty or higher Delhi Metro fares?
Delhi, being the place where all central government departments and ministries are located, must not have its security in the hands of the Delhi government. You can add embassies to this list too, as they hold an important place in the perception of India’s ability to maintain order.
It is often argued that if Delhi is awarded statehood, it will control the police politically and may even use it using it ‘against’ the Centre. there’s also the possibility that it may use land in the same way by withholding its use by the Centre. Simply put, the issue at stake here is the political handling of the reserved subjects.
Article 239 AA (4) states –
“There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.”
This clearly states that the Council of Ministers will aid and advise the LG in all matters that fall under the ambit of the government. There should be no debate on the nature of this advice. This is binding due to the Supreme Court’s interpretation of the matter in the Shamsher Singh case (1971).
The flip side to this, that is often used as an argument, is that this judgement was applicable to governors and the President, not the LGs. In fact, LGs are far more powerful. They have huge discretionary powers. Plus, there is a proviso in clause 4 which addresses the issue of what happens when there is a difference of opinion between the LG and the government.
In my opinion, his is the wrong way to look at it. The governor is quite similar to the LG in terms of ‘aid and advice’. The governor has to act on the advice of state governments, unless in cases where the Constitution permit them to act on their own discretion, according to Article 163. The manner in which this has been written is exactly the same as the clause for Delhi – with one difference. The LG can act on their own discretion where ordinary laws permit them to. The only law here is the above-mentioned GNCT Act which says that they can act according to their discretion only on matters outside the government’s scope. On all matters within the ambit of the government, let there be no confusion – the advice is binding.
Parliamentary democracy is a basic structure of the Constitution. Imagine the logic – you create a legislature and a Council of Ministers – and yet, would you give the executive powers to an unelected, unaccountable post? Is this what the constitutional amendment was all about? To give all powers to the LG? Then, why did you create a government?
The other wrong argument is that “well, the LG is supreme whenever there’s has a difference of opinion. But, how can the LG disagree with the Government if the advice is of a mandatory nature?” Well, to that I say, look at the ‘power of disagreement’ given to the President. Under Article 74: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.”
In 2006, President APJ Abdul Kalam sent back the Office of Profit Bill because he believed that the exception clause was too big. This is the same power to be exercised by the LG as well as the governors. All three of them are, first and foremost, ‘constitutional protectors’ – and that is where I believe the power to disagree with the government comes, in the case of LGs. It is not some authoritative power that they hold over the government which can be used whenever they please.
However, the provision for dissent does not limit the power of the advice of the government. Just because the LG can disagree does not imply that the advice of the government is not binding, as regards matters under its ambit. All legislatures have a check in the form of a ‘constitutional protector’ to remind them that the laws must be in accordance with the Constitution. For states, the governors can disagree if they believe that constitutional principles are not being followed. The same goes for the Union government, and the same must be applied to any legislature created in India – of which, the Delhi government is one.
Also, Article 239 AB is all about the procedure of the President’s Rule in Delhi. If the President is already the executive in Delhi via the LG, who is the administrator and why is there a provision for President’s Rule? Doesn’t the President already have power? Why is there the need to officially declare that the President’s is in charge via the provision of President’s Rule?
In my opinion, there is no doubt that the advice is binding on the LG for all matters falling under the government’s scope. The LG has absolutely no right to disagree with the government, unless they think that the actions of the government are not ‘constitutionally permissible’. The fact that the differences (in public) between the two have been more in the nature of ‘disagreements’ (when it comes to policy matters) is shocking.
To answer the second question correctly, the ‘notification saga’ can serve as an illuminating backdrop.
There was a notification on May 2015 that said services were under the domain of the Centre. This notification, from the Ministry of Home Affairs, said that only the LG had the ability to appoint administrative officials including the Chief Secretary of Delhi. In the notification, the Home Ministry said: “Sub-clause (a) of clause (3) of article 239 AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories… As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, ‘Services’ will fall within this category.”
It is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to entries 1, 2 and 18 of the State List are ‘Public Order’, ‘Police’ and ‘Land’ respectively, entries 64, 65 and 66 of that list (in so far as they relate to entries 1, 2 and 18 as ‘Services’) fall outside the purview of the legislative assembly of the National Capital Territory of Delhi. Consequently the government of NCT of Delhi will have no executive power in relation to the above. Furthermore, that power, in relation to the aforesaid subjects, lies exclusively in the President or the delegate (that is, the Lieutenant Governor of Delhi).
The defining part of the notification is as follows –
“The President hereby directs that –
(i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated herein above, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President.
Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.”
How is this possible? This subverts the Constitution. Only three subjects are prohibited from government access – and ‘services’ is not one of them. Entry 41 of the State List contains the subject of ‘services’. The Constitution provides for the clear responsibility of this to the Delhi government. Under the GNCT Act, Section 41, only those matters outside the purview of the government can be taken up by the LG. Services is not one of them. How can a notification go around a clearly defined constitutional mandate?
Further, this does not just subvert the Constitution, it also subverts the rules made under a statute. The Transaction of Business Rules, 1993 – made by the President and not the Delhi government – has a schedule, under which items 10 and 12 are –
10. Orders embodying important changes in the administrative system of the Capital.
12. Proposals for the creation or abolition of any public office the maximum remuneration of which exceeds rupees five hundred.
These items are those which only the Council of Ministers can handle. The notification runs contrary to the rules made by a President as well as the Constitution. By what godly interpretation did this notification come from? Delhi is not a central department but a Union Territory with its own government. ‘Services’ must be under the ambit of Delhi government. How can anyone but the government appoint their IAS and IPS officers? This power seems to have granted to all Delhi governments, except this one.
To answer the second question in a nutshell – yes, the provisions can be exceedingly misused.
Specious arguments take the cake when it comes to denying Delhi statehood.
There is a reason why various political parties want statehood (for Delhi) before elections, but give up on that demand after they lose or go out of power. That is because they are only willing to trust themselves to do it, but not the other parties. They feel that, although they cannot be accused of this ‘sin’, the other parties, while ruling Delhi, will be excessively political (in issues pertaining to land or police). This mistrust of other parties is toxic for the people of Delhi. This should not be looked at as a politically-charged issue.
To those who are worried about the finances of Delhi, let me assure you – what Delhi shall get is much more than what it will need to pay for.
Firstly, Delhi will get a share in the Finance Commission’s devolution of taxes. The 14th Finance Commission, historically, pushed the divisible pool of funds from 32% to 42%, but Delhi got nothing from that, since it’s considered as a Union Territory. Previously, since 2001, Delhi has got ₹325 crores for more than 15 years as its share in central taxes. In the 2018 Union budget, it got only ₹790 crores. On the other hand, as a state, there shall be a marked improvement on this front.
Secondly, as a state, it will get land revenue, which is a big component of state revenues. In 2017-18, according to its budget, the DDA is estimated to get ₹6,800 crores. Despite that, the power to use land revenue and tax it according to its financial requirements will be the key for Delhi’s finances.
Thirdly, regarding the Delhi police, the Centre plans to spend ₹6,946 crores on it in 2018-19. However, Delhi raises over 70% of its revenue from its own taxes and does not rely on the Centre. Plus, its financial position is quite strong. Its fiscal deficit of a mere ₹2,924 crores is only 0.42% of the GSDP. The GSDP itself has been growing over 8% for the last four years. I expect it to absorb the expense easily. The power to finance (or not to, as the space is quite limited), the big infrastructure projects must all be left to the Delhi government itself.
The politically-sensitive location of Delhi (the exclusive area where the central government resides – Lutyens Delhi), can be protected (if the Delhi government becomes ‘too political’, that is) by giving them their own police force. The area should also governed by the New Delhi Municipal Council (NDMC). The NDMC is already governed by a joint secretary – and this would just codify the existing practice.
Local issues, I think, are best left to local governments. The arrangement would then be – Delhi minus the NDMC area, if the Centre believes the protection of the Parliament and embassies to be its own right, which is quite legitimate. It will also be achievable. As a Standing Committee report mentioned, the central government owns 80% of the buildings in the NDMC area, and private residence is minimal.
Just because a solution is ideal does not mean it is inevitable. In fact, I predict that it will be a long time before Delhi is given statehood, although I would be happy to be proven wrong.
The battle between Najeeb Jung and the Delhi government, and subsequently, the one between Anil Baijal and the Delhi government seem to be indicative of political fights. The collateral damage of these fights are the people of Delhi, who, in my opinion, unequivocally deserve a legitimate government which does not need to bow to the LG. However, it shouldn’t have complete control over Delhi either, since it’s also the seat of the Union government.
I believe Delhi needs statehood as it is one of the most densely-populated places in the country. In such a situation, having the MCDs (which handle sanitation) report to it, plus controlling the police and the land under a competent government can have a transformational effect on the whole area.
The reason for the Constitutional amendment was to give the people of Delhi a fair representation. It is sad that the only ones who’ll suffer will be the people of Delhi, as their right to accountable representation is taken away with the continued denial of statehood.
Featured image used for representative purposes only.