The former CAG writes that the ongoing stalemate in Delhi is traceable not only to the political tussle between the AAP and BJP governments in the city and Centre but also the Home Ministry’s hasty intervention on a sensitive issue

The Constitution of India, adopted in 1950, divided the country into four administrative divisions. The erstwhile provinces of colonial British India became the Part A states. The former Maharajas' kingdoms (better known as the princely states that had accepted British paramountcy) became the Part B states. Part C states were the centrally-administered areas. Part D comprised one territory, the Andaman and Nicobar Islands.

Part C states and the Part D territory were to be administered by the President through Chief Commissioners. In the Part D territory, unlike the Part C states, there was no provision for a legislative body. Delhi, Himachal Pradesh, Manipur, Tripura and the erstwhile princely states of Ajmer, Coorg, Bhopal, etc. constituted the Part C states.

Soon, however, the demand for redrawing state boundaries on the basis of linguistic identities emerged. As a consequence of this demand, the government set up the States Reorganisation Commission in 1953. Based on the recommendation of this Commission, 14 States and 6 Union Territories (UTs) were created. In this reorganisation, Delhi ceased to exist as a Part C state and was converted into a UT from 1 November 1956. The legislative assembly was abolished, and the territory came under the direct administration of the President in 1957.

The Fourteenth Amendment Act of 1962, inserted as Article 239A, provided for the creation of legislative assemblies and council of ministers for some of the UTs such as Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu, Mizoram and Arunachal Pradesh. Delhi, along with Chandigarh and Lakshadweep were excluded from this provision.The public of Delhi continued to demand an elected government.

Following such a demand, the Delhi Administrative Act was passed in 1966, setting up the Metropolitan Council. This was a deliberative body of 56 elected- and 5 nominated-members. It was headed by a Lieutenant Governor (LG), with an executive council comprising one chief executive councillor and three executive councillors. This council was a kind of hybrid body which was set up, as a compromise formula, with no legislative powers. It was mandated with only advisory powers in the governance of the city.

Power-sharing is hardwired

The demand for a full-fledged legislature for Delhi, therefore, continued. In 1987, the government set up the Balakrishnan Committee to review the administrative issues pertaining to the city's governance. In its report submitted in 1989, this committee recommended that whilst Delhi might continue to be a UT, there should be a legislative assembly and a council of ministers with appropriate powers to deal with ordinary issues of administration.

This recommendation led to the passing of the Government of the National Territory Act of 1991, which came into effect in 1992. This Act inserted special provisions in the Constitution for administering the national capital territory (NCT). Article 239 AA was inserted, stating that the legislative assembly shall have powers to make laws for the whole or part of the NCT, except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List if they are linked to Entries 1, 2 and 18. This in effect meant that the Legislative Assembly of Delhi would have no powers over such matters and personnel as public order, police, officers and high court servants and over the land of NCT. In effect, the Legislative Assembly of Delhi has considerably limited authority, compared to the legislative assemblies of full-fledged states.

The reality, therefore, is that Delhi is a full Union Territory. By definition, a UT is centrally administered. The President administers it through the LG, the administrator, who is centrally appointed. The legislature and the council of ministers, conceded to Delhi in response to popular demand, are in place merely to aid and advise the LG. Obviously, such aid and advice are not binding on the LG. The Delhi government can pass laws on various areas barring police, public order and land. Separately, Article 73 of the Constitution mandates that executive power is co-extensive with legislative power.

So the elected government of Delhi does not have executive powers in these three areas which are reserved for the Central government, implying the LG. Even in respect of the state list, the LG has to give his assent to bills passed by the legislature. The LG enjoys the power to withhold assent, keep bills for as long as he likes or send them to the Union government or the President for his or her consideration.

The constitutional reality is that the legislature of Delhi does not have full legislative powers, unlike in other states. So, any party that comes to power and forms the government in this UT must be conscious of this harsh reality, irrespective of whether they win 70 out of the total 70 seats in the Assembly, or a mere 36 giving them a thin majority. Delhi’s present Chief Minister Arvind Kejriwal has come to power riding a massive wave of popular support and winning 67 of the 70 seats. Yet the constitutional reality is particularly relevant to the current situation in Delhi.

An ugly spat

Constitutions, whether written or unwritten, do not always lay down every little detail in the administration of a state or a country. It is expected that those who operationalise the constitution will be politically mature people and do so in good faith, free of any political underpinning. The hybrid nature of the set-up in Delhi has come up for controversy in the past too. The very first Chief Minister of Delhi, Chaudhary Brahm Parkash, had to resign after a rather bitter tussle for power with Chief Commissioner Anand Datthaya Pandit in 1955. Parkash had termed that as actually a fight with the then Union Home Minister Govind Ballabh Pant. In fact, it is widely believed that it was that fight which led to the abolition of the Assembly. That was the time when Delhi was still one of the Part C states.

What we now witness as a rather ugly spat between the present Delhi government and the LG (read Central government) is a natural corollary to how the hybrid nature of Delhi’s constitutional position can lend itself to anomalous interpretations. An appointed LG will most certainly have a mind-set which is very different from an elected government or chief minister.

Nevertheless, if the goals of both are good governance, development and improvement of societal welfare, ordinarily there would be no friction in governance. It is only when populist claims, playing to the gallery and the lack of an administrative model/roadmap are coupled with certain degrees of political machinations and inept handling of sensitive issues, that the cordiality in official dealings and the spirit of give-and-take become a casualty. The result: unproductive wrangling, negative output of human- and time resources.

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