The Constituent Assembly of India did not ever discuss the constitutional status of Delhi as an independent and separate agenda-item. Delhi was discussed in detail in two committees of the Assembly, viz. (i) a special Committee headed by Pattabhi Sitaramayya, and (ii) the Constitution Drafting Committee headed by Dr B.R. Ambedkar.
What came up for discussion in the Constituent Assembly was the question of the constitutional changes as a group in those Centrally Administered Areas (Delhi was one such area) that were being administered directly through the Chief Commissioners; what was suggested for all such provinces was a democratic administration.
On July 30, 1947, the agenda before the Constituent Assembly was discussion of the constitutional status of Centrally Administered Provinces such as Delhi, Ajmer, Coorg, Andaman & Nicobar, and so on. The problem was that some of these provinces were very small in size; others had a limited population; and in most cases, their economic resources were limited and scanty; hence, a separate administration could not have been provided.
Sitaramayya Committee
After several members spoke on the subject, Deshbandhu Gupta moved a motion , and a seven-member committee headed by Pattabhi Sitaramayya was formed to study all aspects of the matter and submit a report. Gupta, a Delhi-based ambitious politician, was also made a member of the committee.
October 1, 1953: Dr. Pattabhi Sitaramayya. | Photo Credit: THE HINDU PHOTO ARCHIVES
The committee worked with remarkable speed: after holding just three quick sittings, and in less than three months, it submitted its report to President Dr Rajendra Prasad on October 21, 1947.
The promptness shown by the committee in submitting the report can perhaps be attributed to the fact that the Delhi-based politician, who was well-conversant with the city’s history, culture, and institutions, was seemingly angling for a position in Delhi’s new set-up.
This is also testified by the fact that on September 17, 1947, he wrote to the secretary of the committee, bypassing the committee chairman, suggesting the date of the next meeting of the committee.
However, destiny did not oblige him; when Delhi was made a part ‘C’ state and given an Assembly and a Chief Minister (1952-56), it was Brahm Prakash who became the first Chief Minister. The Assembly was later abolished in 1956 when Delhi was converted into a Union Territory.
Recommendations for Delhi
The Pattabhi Sitaramayya Committee recommended a separate self-government in Delhi, viz. a three-member Council of Ministers to aid and advise the Lieutenant Governor and a 50-Member Legislative Assembly with power to legislate on all matters in the State List and the Concurrent List. In other words, it proposed near-Statehood for the capital city.
This triggered a political tremor. Apart from Prime Minister Jawaharlal Nehru, several other stalwarts including Sardar Patel, C. Rajagopalachari, Dr Ambedkar and Dr Rajendra Prasad were convinced thatthe recommendations were inappropriate since Delhi was the country’s capital. Nehru and others who held this view openly disapproved and rejected the report.
On the floor of the House, a furious Nehru exhorted the Constitution makers to reject the report, when tabled. In a statement during a debate in the Provisional Parliament on August 1, 1949, he said:
“Over two years ago, this House appointed a Committee. Sitaramayya Committee but since that Committee was appointed, the world has changed, India has changed and Delhi has changed vitally. Therefore to take up the recommendations of that Committee regardless of these changes that have taken place in Delhi would be to consider the question completely divorced from reality.”
At one stage, Nehru even told the members of the Constituent Assembly that since three-fourths of the property in New Delhi belonged to the Central government, it was only logical and prudent that the federal government should exercise exclusive legislative powers and authority in respect of Delhi. (Provisional Parliament Debate on Govt. of Part ‘C’ states Bill 1951, pages 1,599-1,600.)
Support for report
In the meanwhile, the supporters of the self-government move joined hands and started mobilising supporters in favour of the report. In view of frayed tempers on both sides and to avoid any unpleasantness on the floor, and its possible adverse impact on the framing of the Constitution and its unanimous adoption, Dr Rajendra Prasad did not table the report for nearly two years.
Weeks and months rolled by but the stalemate continued and postures hardened further on both sides. Behind the scenes, Dr Rajendra Prasad and Dr Ambedkar held the considered view that precedents the world over (US, Australia, Canada, and so on) favoured only direct and ‘exclusive’ federal government control over the nation’s capital.
Those in favour of the report included vocal members such as Deshbandhu Gupta, Pattabhi Sitaramayya, R.K. Sidhwa, and Mahavir Tyagi.
Perhaps, for the first time, as Presiding Officer, Dr Rajendra Prasad was compelled by circumstances to keep the report pending with him for an unusually long period.
In early November 1949, Dr Ambedkar’s Drafting Committee Secretariat needed the report to finalise Chapter 8 of the Constitution dealing with ‘Administration of Union Territories’. In the light of this, the beleaguered President invited Dr Ambedkar for a one-to-one discussion on the issue.
Circumstantial evidence indicates that the two illustrious leaders likely met on the morning ofJuly 24, 1949, to discuss the matter. A decision was taken not to have any discussion on the subject on the floor of the House and to unanimously adopt the final draft of the Constitution in a spirit of bonhomie. The President formally authorised Dr Ambedkar to hammer out a workable solution, preferably outside the Constituent Assembly Hall.
Dr Ambedkar’s solution
Thereafter, Dr Ambedkar took over and amply demonstrated his skill and acumen. He invented an out-of-the-box formula to overcome the crisis; what he did can indisputably be described as an act of a genius. He promptly summoned an urgent but highly confidential meeting of the Drafting Committee.
In the meeting, he formally invited India’s two tallest leaders Jawaharlal Nehru and Sardar Patel as special invitees. Records, painstakingly retrieved from the National Archives, show that this meeting on the Delhi issue was held not in Parliament House but Sardar Patel’s official residence: 1, Aurangzeb Road, on July 25, 1949, at 3 p.m.. The proceedings were not verbatim recorded.
On Dr Ambedkar’s direction, meeting notices (available on record) were issued to all concerned by S.N. Mukerjee, Joint Secretary (Constituent Assembly), who was also the officer in-charge of the Drafting Committee Secretariat. (After the Constitution came into force, S.N. Mukherjee was appointed Secretary-General of the Rajya Sabha.)
Circumstantial evidence also indicates that in all, nine members of the Constituent Assembly attended this meeting, viz., seven members of the Drafting Committee, and the Prime Minister and the Home Minister representing the government side. Dr Ambedkar presided.
The unanimous decision taken by the Drafting Committee was that Delhi being the country’s capital could not be given any self-government or Statehood. Hence, it should be administered directly by the President through a Lt. Governor and the legislative power should be exercised exclusively by the Parliament. The spirit and substance of the recommendations were duly incorporated in the final draft of the Constitution.
(It is important to mention that the Drafting Committee also made certain departures from the earlier approved draft. These were embodied in the final draft of the Constitution. Two of these departures related to the Preamble, viz. (i) substitution of the phrase “Sovereign Independent Republic” with “Sovereign Democratic Republic”, and (ii) addition of a clause about “Fraternity”. Some other important departures include describing India as a ‘Union’ and not a ‘Federation’; easy mode of acquiring domicile and citizenship for displaced persons who migrated to India; increase in the number of Members nominated by the President in the Council of States; a longer term of five years instead of four years for MPs, MLAs, and so on.)
As regards Delhi, the relevant para from Dr Ambedkar’s report sent to the President of the Constituent Assembly in November 1949 along with the final draft of the Constitution reads as follows:
“So far as Delhi is concerned, it seems to us that as the capital of India, it can hardly be placed under a local administration. In the United States, Congress exercises exclusive legislative power in respect of the seat of the government; so too in Australia. No sufficient reasons for departing from these precedents appear in the report (of Pattabhi Sitaramayya Committee). We have, therefore, come to the conclusion that a somewhat different plan is desirable. Accordingly, we have proposed in the draft that these Central Areas may be administered by the Government of India either through a Chief Commissioner or a Lieutenant-Governor or through the Governor or ruler of a neighbouring State according to the wishes of the inhabitants concerned. What is to be done in case of a particular area is left to the President to prescribe by order. He will, of course, in this, as in other matters, act on the advice of responsible Ministers. He may, if he chooses, have a Lieutenant Governor in Delhi. He may also by order create a local legislature and provide for its constitution and powers.”
These observations clearly imply that the founding fathers were in no way inclined, or had accorded approval, to the creation in Delhi of institutions such as a Council of Ministers, a Legislative Assembly and a government, concurrent or parallel.
1987 committee
Almost 40 years later, a Committee on “Reorganisation of Delhi Set-up” was constituted by the Ministry of Home Affairs vide its Order dated December 24, 1987, with Justice R.S. Sarkaria, an erudite Judge of the Supreme Court as its Chairman, and S. Balakrishnan, Adviser, Ministry of Home Affairs, and Romesh Chandra, Secretary, Ministry of Urban Development, as its Members.
Justice Sarkaria resigned from the position on his appointment as Chairman of the Press Council of India in January 1989. Thereafter, S. Balakrishnan functioned as the Chairman. The report was submitted to the then Union Home Minister Mufti Mohammad Sayeed on December 14, 1989. It appears, as though, that the Government of India accepted the recommendations of the Balakrishnan Committee in its entirety without, perhaps, any detailed scrutiny by experts and professionals.
S. Balakrishnan, it may be noted, was only a civil servant and not a jurist or a constitutional expert. It is mind-boggling as to why he, in his report, recommended the creation of institutions in the National Capital, not by way of parliamentary legislation but by inserting provisions in this regard in the Constitution itself. This, needless to add, only makes the process of undoing and rectifying the aberrations more cumbersome and arduous.
In 1987, when the committee was set up, Delhi had three important institutions. The committee, dominated by bureaucrats, seems to have changed their nomenclature, which resulted in confusion and misconception. This is what they changed:
- Metropolitan Council (a 56-member elected body with zero law-making power); its name changed to Legislative Assembly.
- A four-member Executive Council to aid and advise the L-G; its name changed to Council of Ministers.
- Chief Executive Councillor; name changed to Chief Minister.
- Delhi Prashashan, which conveyed that this local administration was subordinate or subservient to the Union government; name changed to Delhi government.
My considered, humble view, based on four years of detailed research and painstaking study of the matter, is that during the tenures of three Prime Ministers—V.P. Singh (December 2, 1989-November 10, 1990), Chandra Shekhar (November 10, 1990-June 1, 1991) and P.V. Narasimha Rao (June 21, 1991-May 16, 1996)—Parliament, possibly unwittingly and unknowingly, erroneously accepted the recommendations of the S. Balakrishnan Committee and made special provisions for Delhi by effecting necessary changes in the Constitution (Article 239) by enacting the69th Amendment Act, 1991.
Since elections are held to choose MLAs, and from among the MLAs, the Chief Minister is chosen and a government formed, the perception created both among the voters and the voted is that Delhi has a Chief Minister like other States, a Legislature and a separate government, concurrent and parallel and popularly elected.
Thus, the following conclusions can be drawn:
That the 69th Amendment Act, 1991, appears to be a piece of legislation which is void ab initio as also the institutions created thereunder in the National Capital. While the right of Parliament to amend the Constitution is not disputed, Parliament cannot, in my humble view, overturn the decision of the Constitution-making body: a decision taken jointly and in national interest with the government of the day outside the Constitution Hall.
Parliament cannot perhaps nullify or supersede such a decision by invoking its constituent power conferred on it under article 368 of the Constitution (viz. Parliament’s right to amend the Constitution).
In the light of the facts cited above, it is now in the domain of the Supreme Court to decide whether the verdict already given by its Constitution Bench on July 4, 2018 (in Government of NCT of Delhi versus Union of India & Another) needs a fresh look.
In the instant case, it is worth noting that since the 69th Amendment Act, 1991, which added a new clause 239AA, appears to be void ab initio and so also the three institutions created thereunder, viz. the GNCTD, its Council of Ministers, and the Legislative Assembly, it seems to be a fit case for application of the doctrine of prospective overruling.
The doctrine, which originated in the US judicial system, dictates that a decision in a particular case would have operation only in the future and will not carry any retrospective effect on any past decisions.
On an equally important plane, if the Constitution is to reign supreme, the Parliament and the government have no option but to delete article 239AA, erroneously inserted, and revert to the old position; this, however, will necessitate taking other parties also on board, since two-thirds majority will be needed.
S.K. Sharma is former Secretary, Lok Sabha and Delhi Assembly, and the author of B.R. Ambedkar: Arbiter of Delhi’s Destiny, published by NBT (Government of India) as part of the India @75 series.
