Is Delhi Really a State?

By Vivek K Agnihotri

Recently, both Houses of Parliament passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 (NCT of Delhi Amendment Bill, 2021). In seeking to amend Sections 21, 24, 33 and 44 of the eponymous Act, it makes the following significant provisions:

  • The expression “Government” referred to in any law made by the Legislative Assembly of Delhi shall mean the Lieutenant Governor (LG) (Section 21).
  • The LG shall not assent to a Bill on any matter which is outside the purview of the powers conferred on the Legislative Assembly (Section 24).
  • The rules for conduct of business in the Legislative Assembly shall be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha; and, in particular, its committees shall not enquire into matters of day to day administration (Section 33).
  • Before implementing any decision of the council of ministers or a minister, the government must seek the opinion of the LG on all such matters as may be specified by him by a general or special order (Section 44).

Arvind Kejriwal, Delhi’s chief minister, said that the Bill seeks to curtail drastically the powers of the elected government and is unconstitutional and anti-democratic.  The media too took up the cudgels on his behalf.  “The Bill seeks to establish the primacy of the LG…over Delhi’s elected government…”, “By mandating LG’s opinion before any decision is taken, the amendment seeks to override SC’s ruling which held that the Council of Ministers did not need to obtain LG’s concurrence”, and “The proposed changes are the very anti-thesis of what the Court has said”, were the concerns voiced in some of the leading editorials.

From all accounts, the relationship between the chief minister and the LG of Delhi has always been strained. Spats between the two have been reported on a regular basis. The issues of conflict have been wide and varied. 

The first and foremost has been the matter of administrative control over the Delhi police. Other sticking points have been: The judicial commission constituted by the Delhi government to enquire into the CNG fitness scam; appointment of a Lokayukta, direction issued by the LG to Delhi, Andaman and Nicobar Islands Civil Service officers not to go by Delhi government’s orders without his approval and orders of the central government relating to the posting of the chief of the Anti-corruption Bureau, appointment of directors of DISCOMs, among others.

Remember, one of the planks of the election manifesto of the ruling Aam Aadmi Party was getting the status of full statehood for Delhi; which, in effect, implies that it is not so at present. While these skirmishes continue ad infinitum or at least till the utopia of statehood is achieved, let us take a look at the constitutional and legal status of the Government of NCT of Delhi.

According to the First Schedule of the Constitution of India, Delhi is a Union Territory (UT).  Article 239 states that every UT shall be administered by the president acting through an administrator to be appointed by him with such designation as he may specify.  Article 239A was brought in 1962 (Fourteenth Amendment to the Constitution) to enable Parliament to create legislatures for the UTs.  It is a somewhat unique provision in so far as it mandates that the legislature could be elected or partly elected and partly nominated.  There can be a council of ministers without a legislature or there can be a legislature as well as a council of ministers.

By an amendment to the Constitution in 1991 (Sixty-ninth Amendment to the Constitution), Delhi came to be known as the National Capital Territory of Delhi and its administrator was designated as the lieutenant governor.  It also made provision for a legislative assembly for Delhi, the strength of which was fixed at 70 by the Government of National Capital Territory of Delhi Act, 1991 (NCT of Delhi Act). The Constitution also provides that the council of ministers will aid the LG in the exercise of his function, except in so far as he is, by or under any law, required to act in his discretion. Section 41 of The NCT of Delhi Act prescribes the discretionary powers of the LG. It provides that if any question arises as to whether any matter is or is not a matter in respect of which the LG is required to act in his discretion, his decision will be final.

According to the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (Rules), the LG has to be kept informed at all stages of a proposal being placed before the council of ministers and thereafter.  All standing orders of a minister concerning disposal of business in his department as well as matters disposed of by the department have to be intimated to the LG.  The LG may further call for papers relating to any proposal or matter in any department and such requisition shall be complied with by the secretary to the department concerned. Any matter which is likely to bring the government of the capital in conflict with the centre or any state shall be brought to the notice of the LG.  Rule 23 of the Rules lists certain classes of proposal or matters that shall be submitted to the LG before issuing orders thereon.  Rule 24 further provides that where the LG is of the opinion that action should be taken in accordance with the orders passed by the minister in charge, he may require the matter to be placed before the council of ministers for consideration.

Chapter IV of the Rules deals extensively with disposal of business relating to executive functions of the LG, which include matters connected with public order, police, land and persons serving in connection with the administration of the NCT of Delhi (“services”).

Chapter V of the Rules further deals with matters in which the LG can make reference to the central government, such as in case of a difference of opinion with the council of ministers.  Rule 55 makes it obligatory for the LG to refer to the central government certain legislative proposals, as well as proposals for the appointment of chief secretary and commissioner of police, secretary (home) and secretary (lands), among others.  When a matter has been referred by the LG to the central government under these Rules, no further action shall be taken except in accordance with the decision of this government.

The provisions in the Constitution, the NCT of Delhi Act and the Rules outlined above, make it abundantly clear that the NCT of Delhi is, for all practical purposes, a territory under President’s Rule and is to be administered by the LG under his directions. The Amendment Bill effectively removes all lingering doubts in the matter, if any.

On the petition filed by the chief minister, the Delhi High Court, in its judgment on August 4, 2016 (Rajender Prashad vs Government of NCT of Delhi),upheld the administrative powers of the LG in matters of public order, land, police and services, including the power to appoint civil servants, and arrived at the following significant conclusions:

(i) On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of NCT of Delhi Act and the Rules, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (Sixty-ninth Amendment) Act, 1991, inserting Article 239AA making special provisions with respect to Delhi.

(ii) Article 239 of the Constitution continues to be applicable to NCT of Delhi and insertion of Article 239AA has not diluted the application of Article 239 in any manner.

(iii) The contention of the Government of NCT of Delhi that the LG is bound to act only on the aid and advice of the council of ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3) (a) of Article 239AA of the Constitution is without substance and cannot be accepted.

(iv) It is mandatory under the constitutional scheme to communicate the decision of the council of ministers to the LG even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under  clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the LG does not take a different view, and no reference to the central government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Rules.

Against this order of the Delhi High Court, the government of Delhi filed an appeal before the Supreme Court, which in its order on July 4, 2018(Government of NCT of Delhi vs Union Of India) by a Constitution Bench held that the council of ministers is under an obligation only to “inform” the LG of its decision and “no concurrence is mandated”.  In a February 14, 2019 (Government of NCT of Delhi vs Union Of India)order of a Division Bench of the Supreme Court, it was  further clarified that the LG of Delhi is bound by the “aid and advice” of the council of ministers in matters where the assembly has legislative powers, except land, police and law and order. In another development later, on the issue of control over “services”, a five-judge bench of the Supreme Court, headed by Justice Arun Mishra, took up the hearing in January 2021.

On the other hand, in the backdrop of top AAP leaders sitting on a protest in the LG's office for days on end, the Supreme Court observed that there's "no room" for "absolutism" or "anarchism". The Court also held that the LG should not act in a mechanical manner, and stall the council of ministers' decisions.  She/he can refer differences of opinion to the president only in exceptional matters, and not as a general rule.

The Court finally said that the LG needs to work harmoniously with the council of ministers. An attempt should be made to settle differences of opinion with discussions.  This approach is actually part of the Rules.  Rule 49 provides that in case of a difference of opinion between the LG and a minister in regard to any matter, the LG, in the first instance, shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen.  Thus, since we are dealing with a popularly elected government, dialogue, consultation and coordination (samvad, sahamati aur samanvaya) on both sides appear to be the way forward.

According to the Statement of Object and Reasons accompanying the NCT of Delhi Amendment Bill, 2021, it seeks to give effect to the interpretations made by the Supreme Court in its orders dated July 4, 2018 and February 18, 2019.  It further states that the Bill will promote harmonious relations between the legislature and the executive, and further define the responsibilities of the elected government and the LG in line with the scheme of governance of NCT of Delhi, as interpreted by the Supreme Court.

While aligning the rules of the legislative assembly with those of the Lok Sabha is unexceptionable, “interpreting” the Supreme Court order to keep the LG in the loop of ministerial decision-making as a mandate to seek his opinion on all matters specified by him by a general or special order is somewhat suspect.

Given its reservations about the Bill, there is little hope that the government of Delhi will allow matters to rest there.  But before the matter is again dragged to the Court on the back of the consequent Act, against the backdrop of the sobering experience gained from the passage of the beleaguered farm laws, the desirability of wider consultation on the NCT of Delhi Amendment Bill, 2021 cannot be gainsaid. The central government would perhaps have done well to allow the Bill to be examined by the concerned Department Related Standing Committee before it was taken up for consideration and passing in the two Houses of Parliament.

—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012