The tussle between the Aam Aadmi Party (AAP) government and Delhi Lieutenant Governor V.K. Saxena over the division of authority in the National Capital Territory of Delhi took an ugly turn recently. Frustrated with his government’s lack of control over the civil services, Chief Minister Arvind Kejriwal said in the Assembly on January 17: “I am an elected Chief Minister…. Who is LG? Where has he come from? Why is he sitting on Delhi government’s head?”
Kejriwal described the LG as a “headmaster” and said that “even my teachers have not checked my homework the way the LG does. He keeps sitting on files as though the handwriting is not good, the spellings are incorrect… .”
A day earlier, Kejriwal tweeted: “Delhi does not need tyranny but the Constitution and democracy. Our struggle for people’s rights will continue.” He led a protest march against the LG’s alleged interference in the government’s functioning. The party also staged demonstrations against the Union Urban Development Ministry, claiming that Public Works Department officials were not cooperating with the AAP government. The party has accused the Bharatiya Janata Party government at the Centre of misusing agencies to target its leaders in false cases.
In addition, Kejriwal alleged that Saxena threatened him, saying, “I won’t let you form the government in Delhi after the next Assembly election.” The elections are due in early 2025.
Describing his utterances inside the House and outside as “severely and substantively misleading, untrue and derogative”, Saxena wrote to Kejriwal: “As to ‘Who is LG’ and ‘Where did he come from’ etc. can be answered if you were to even cursorily refer to the Constitution of India, others don’t deserve a reply, since they obviously cater to a very low level of discourse.”
Saxena expressed concern over the dwindling attendance and enrolment in government schools and claimed that no new schools had been created in the past eight years even though the Delhi Development Authority had allotted 13 plots to the Education Department.
State or Union Territory?
The dispute over separation of powers in Delhi, which does not have full statehood, is not new. Unlike other Union Territories, listed in Schedule 1 of the Constitution, Delhi was christened the “National Capital Territory” by the Constitution (69th Amendment) Act, 1991, which introduced Article 239 AA that created three institutions—the Government of National Capital Territory of Delhi (GNCTD), its Council of Ministers, and the Legislative Assembly.
Article 239 AA notes that the Union Territory of Delhi be administered by a Lieutenant Governor on the aid and advice of the elected legislature over matters defined under the State and Concurrent Lists except for three subjects: public order, police, and land. The Article also makes the LG duty-bound to implement the decisions taken by the President. Constitutional and parliamentary experts believe that Delhi is neither a UT nor a State but something in between, with a legislature and a Council of Ministers with limited powers.
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The confrontation between the elected government and the LG over powers escalated with the AAP coming to power on December 28, 2013. The AAP has locked horns with all the LGs, be it Najeeb Jung, Anil Baijal, or Saxena. In August 2018, the AAP reportedly submitted over 10 lakh letters to Prime Minister Narendra Modi to demand full statehood for Delhi.
Recently, there have been a few flashpoints. The AAP moved the Supreme Court seeking timely election of the mayor and the deputy mayor for the Municipal Corporation of Delhi (MCD) as well as a direction to restrain the councillors nominated to the House by the LG from voting.
Deputy Chief Minister Manish Sisodia also recently stated that the LG was bypassing the elected government by issuing prosecution sanctions. Among other issues, the AAP government has also protested the demolition drives in the city, the LG’s alleged refusal to cooperate with its proposal to train teachers in Finland, and the non-payment of salaries to mohalla clinic staff.
On January 10, a five-judge Constitution Bench led by Chief Justice D.Y. Chandrachud allowed the Central government to seek reference to a larger bench in a case relating to the power dispute between the LG and the Chief Minister. The Centre’s contention was that a 2018 ruling by a Constitution Bench interpreting Article 239 AA (special provisions with respect to Delhi) was not in tune with an earlier nine-judge bench decision in New Delhi Municipal Corporation vs State of Punjab (1996), which held that Delhi was on the same footing as a Union Territory.
Constitutional and parliamentary experts are divided over the issue. When Delhi was given an Assembly in 1993, S.K. Sharma, then Secretary, Lok Sabha, played a key role in drafting the rules and setting up legislative procedures and guidelines for the Assembly, Presiding Officers, Members, and Committees, and training the newly elected MLAs.
“During my tenure, there was absolutely no problem. Now the people who have come to power through an andolan [agitation] haven’t read the Constitution and they are not even prepared to read it,” said Sharma, who has worked with four Chief Ministers—Madan Lal Khurana, Sahib Singh Verma, Sushma Swaraj, and Sheila Dikshit.
He argued: “Just because of the nomenclature as Chief Minister, Cabinet, etc., Delhi doesn’t become a State. As per provisions of [Article] 239 AA, Parliament reserves the right to supersede any law passed by the Delhi Assembly.” Sharma quoted Article 239 that “every UT shall be administered by the President not sitting in Rashtrapati Bhavan but through a Lieutenant Governor. In some UTs, legislatures have also been given but it is just for namesake. In the case of Delhi, there are riders. There are some powers relating to subjects such as law and order, land, and civil services, which the Constitution has exclusively given to the LG.”
According to Sharma, “Delhi’s Chief Minister is a toothless tiger. He can’t hold a Cabinet meeting without permission from the LG or take any decision without having it approved by the LG. The LG can order files from any official directly. A Chief Secretary is duty-bound as per the written rules to comply. Therefore, the elected set-up in Delhi is supposed to be an adviser on behalf of the people to help the LG run the administration. Technically, it can’t be a ruler as per the constitutional scheme.”
According to P.D.T. Achary, former Secretary General of the Lok Sabha, the Supreme Court had in 2018 settled the basic issues concerning distribution of power between the LG and the elected government. “Delhi is neither like Andaman nor like Puducherry. It’s a case in itself. It has been given an Assembly and a government by the Constitution through Article 239 AA,” Achary told Frontline.
“So far as constitutional precision is concerned, the Assembly is elected just like in a State and the executive is always responsible to the legislature. The Constitution also provides that subjects such as public order, police, and land would be under the control of the LG. The rest of the items in the State List are under the control of the State government. That means the Assembly can make any law on the remaining subjects and its authority is complete on those items. So, Delhi is almost like a State.”
However, in 2021, the Central government brought an amendment to the Government of National Capital Territory of Delhi Act, 1991, which gave supremacy to the LG over the elected government. According to this, the government is to refer to the LG any law promulgated by the Assembly and the Assembly cannot frame rules or set up committees to consider day-to-day administration or conduct inquiries.
The Act makes it clear that the rules or committees that came into existence before the amended Act became operational shall be void. The amended law makes the opinion of the LG mandatory for any executive action and maintains that the LG has the power to reserve for consideration any Act or matters outside the purview of the Assembly.
“The amendment to the NCTDA Act was passed as a supplement to the constitutional provision under Article 239 AA. The supplementary provisions of Parliament cannot bypass the constitutional provision and give more powers to the Central government than what is provided for in the Constitution,” Achary said.
He further said that what Parliament did was to make an amendment and say that the Assembly cannot look into the administrative decisions of the State government. “Here they said the government means the LG, otherwise government means the Governor or LG aided and advised by the Council of Ministers. So, the amendment has only created confusion instead of clarifying the issue. It could make sense only in a UT where there is no representative body or Assembly or a responsible government. But it is completely out of sync with the constitutional set-up created for Delhi.”
According to Achary, the amendment was against the letter and the spirit of the Constitution and does not have constitutional sanction. “You cannot take away the basic function of the legislature.”
Bypassing legal powers
Another amendment mandates all decisions taken by the Cabinet to be sent to the LG and for the responsible government to seek his opinion on each of those decisions. “It is a way of bypassing the legal or constitutional powers of the elected government,” said Achary. “The Supreme Court has said that there is no need to take the concurrence of the LG, but he has to be informed when the Cabinet decisions are taken. But what is happening is that the elected government can’t implement its decision till the LG gives his opinion. So, it effectively becomes LG’s concurrence, which is against the law, and the Constitution.”
Unlike States, Delhi does not have a Public Service Commission of its own. Civil services come under the State List, Achary said, but “the Central government issued a notification and took away the services, saying that Delhi, being a UT, is covered by the Union Public Service Commission and all the appointments to the Delhi government are done through it”.
Referring to the Seventh Schedule of the Constitution, which details the Union List, State List, and Concurrent List, he said: “The ‘Public Service Commission’ is one item and ‘Services’ are another item. These are two interconnected items. After the Public Service Commission, there is a semicolon followed by ‘Services’. So these two have been linked by the Central government. Even CJI Chandrachud put this question to the Solicitor General, asking ‘if the government of a State doesn’t have control over officials then what kind of government is it? Why should we have an elected government in Delhi?’ There was no clear answer.”
Achary hoped the Supreme Court would take a more pragmatic view of the matter. “How can a Chief Minister function if the Chief Secretary is directly responsible to the LG? That is the kind of diarchy here in Delhi where officials are not directly under the control of ministries. A Chief Minister can’t even transfer an official,” Achary said.
Political observers say the Central government is overstepping its jurisdiction in opposition-ruled States through the offices of the Governor and the Lt Governor in order to destablise governments. “This is completely a political game. The BJP doesn’t like opposition. They don’t tolerate any kind of criticism or dissent,” senior Supreme Court lawyer Dushyant Dave said . Referring to Prime Minister Modi’s and Union Home Minister Amit Shah’s repeated calls for a Congress-Mukt Bharat (Congress-free India), Dave said: “Now they want an opposition-free India.”
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He said the BJP’s agenda was very clear. “They don’t want to allow the AAP to work properly so that it doesn’t get re-elected. This is completely against constitutional philosophy, constitutional morality and constitutional principles. Only the judiciary can stop it.”
Significantly, during the 2015 Delhi Assembly election campaign, Modi had reiterated his party’s promise of full statehood to Delhi. Said Dave: “Look at the dishonesty that far from giving full statehood to Delhi, the ruling BJP is curtailing every power the Delhi government has.”
- Unlike other Union Territories, listed in Schedule 1 of the Constitution, Delhi was christened the “National Capital Territory” by the Constitution (69th Amendment) Act, 1991, which introduced Article 239 AA.
- Article 239 AA notes that the Union Territory of Delhi be administered by a Lieutenant Governor on the aid and advice of the elected legislature over matters defined under the State and Concurrent Lists except for three subjects: public order, police, and land.
- Constitutional and parliamentary experts believe that Delhi is neither a UT nor a State but something in between, with a legislature and a Council of Ministers with limited powers.
- Recently, there have been a few flashpoints. The AAP moved the Supreme Court seeking timely election of the mayor and the deputy mayor for the Municipal Corporation of Delhi (MCD) as well as a direction to restrain the councillors nominated to the House by the LG from voting.
- Deputy Chief Minister Manish Sisodia also recently stated that the LG was bypassing the elected government by issuing prosecution sanctions. Among other issues, the AAP government has also protested the demolition drives in the city, the LG’s alleged refusal to cooperate with its proposal to train teachers in Finland, and the non-payment of salaries to mohalla clinic staff.
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