Tussle for Power

By Dr Abhishek Atrey

Recently, the Supreme Court asked the centre what was the purpose of Delhi having an elected government if the entire administrative control was with it. The fight in Delhi for getting full statehood is not new; it's been going on for a long time.

Union Territories (UTs) are not states and are under the direct control of the Union of India. The Parliament can make law and control the entire administration of UTs. However, there are certain exceptions as given under Article 239 and 239AA with respect to Delhi and Puducherry. Presently, there are 28 states and eight UTs—Delhi, Andaman and Nicobar, Chandigarh, Dadra and Nagar Haveli and Daman and Diu, Jammu and Kashmir, Ladakh, Lakshadweep and Puducherry.

Before delving into the fight for power between the centre and the Delhi government, we should understand why UTs exist. India is a federal country where the ruling powers are distributed among the central government and states as per Article 1 of the Constitution. India is a Union of States, not a Federation of States like the US. As per Article 3, the Union government has powers to alter the boundaries of states. Therefore, India is often called a quasi federal country which is more unitary and less federal.

There are three lists in Schedule 7 of the Constitution—the Union, the State and Concurrent Lists. The Union has exclusive powers to make laws in respect of any entry in the Union and Concurrent List, while states have exclusive powers to make laws in respect of any entry in the State List. States can also make laws in respect of any entry in the Concurrent List, but if there is any inconsistency with any law made by Parliament on the same subject, the law made by the House shall prevail. Articles 246 to 255 define the powers of both states and the Union to legislate. In certain circumstances, the Union can also make laws on subjects in the State List.

When the Constitution was adopted in 1949, the federal structure of India consisted of four parts: 

  • Part A—former British India provinces that had the governor and the legislature, which were states in the true sense
  • Part B—former princely states that were governed by a Rajpramukh
  • Part C—Chief Commissioner’s provinces and some princely states that were governed by him. In all these three categories, the administrators were appointed by the president of India. 
  • Part D—the territory of Andaman and Nicobar Islands that was governed by a lieutenant-governor who was appointed by the centre. At that time, there were only six UTs—Andaman and Nicobar Islands, Lakshadweep, Delhi, Manipur, Tripura and Himachal Pradesh.

Daman and Diu and Goa were merged into the Republic of India after attaining independence from Portuguese rule in 1961. In 1970, Manipur, Tripura and Himachal Pradesh were granted statehood and Chandigarh was made a UT. In 1987, Goa was granted statehood. In 2019, the Jammu and Kashmir Reorganisation Act, 2019, was passed by the Indian Parliament and it reconstituted the state into two UTs—Jammu and Kashmir and Ladakh. In 2020, Dadra and Nagar Haveli and Daman and Diu were merged into a single UT. 

As far as Delhi is concerned, on March 27, 1952, the first election of the assembly was conducted for 48 seats. Chaudhary Brahm Prakash Yadav became the first chief minister of Delhi. After the State Reorganisation Act 1956, Delhi lost the status of state and was made into a UT. In 1991, Article 239AA was inserted in the Constitution by the 69th Constitution Amendment Act, 1991, by which a legislative assembly was created in Delhi and it was given quasi statehood. The Government of National Capital Territory of Delhi Act, 1991, was passed by Parliament to give effect to the newly inserted Article 239AA.

The concept of UT was first introduced in the States Reorganisation Act, 1956. It refers to those territories that are too small to be independent or too different economically, culturally and geographically to be merged with surrounding states or which are financially weak or politically unstable or strategically important for India. Lakshadweep and Andaman and Nicobar Islands are located far from the mainland of India and are strategically important. In case of an emergency, the government can directly act from there. The same goes for Jammu Kashmir and Ladakh. Chandigarh is the administrative capital of both Punjab and Haryana and Delhi is the administrative capital of India. 

Being the administrative capital, Delhi has many ambassadors and diplomats residing here. It regularly hosts foreign premiers and other important guests. As it is important to build a good image of India in front of other countries, it is necessary to keep Delhi above all other cities in beauty and administration. Therefore, any government in the centre cannot afford to lose control over the administration of Delhi. 

While the constitutional amendment of 1991 gave a legislative assembly to Delhi, the intention of lawmakers at that time was also to keep administrative control over the city and make it only a quasi state. Therefore, Article 239AA and the Government of National Capital Territory of Delhi Act 1991 were drafted in a manner that gave wide powers and control in the hands of the L-G in comparison to the elected government of Delhi. Incidentally, a quasi state is one without powers. 

In Article 239AA, it is specifically mentioned that the legislative assembly of Delhi shall not have powers to make laws in respect of certain entries in the State List of the 7th Schedule of the Constitution. These are Entries 1 (Public Order), 2 (Police), 18 (Land), 64 (Offences against laws), 65(Jurisdiction and Powers of Courts) and 68 (Fees in respect of any matter of the State list).

Previously, all state governments in Delhi followed this scheme and they did not raise any objection on the powers of the L-G. However, after the AAP government came to power by a huge majority in Delhi, it started questioning why it should remain under the control of the L-G. It started taking independent decisions without taking the L-G’s consent. The L-G too started withholding almost all the files of the Kejriwal government. 

The Delhi government then challenged the powers of the L-G given in the 1991 Act and knocked on the doors of the Supreme Court. A five-judge Constitution bench in an elaborate judgment decided in 2018 that the Delhi government does not need the concurrence of the L-G in its executive decisions. The Court held that the word “aid and advice” given by the council of ministers is binding on the L-G unless he decides to exercise his powers to refer any matter to the president.

This decision of the Court could not be accepted by the centre because it would give more powers to the Delhi government. Having no other option, the Parliament brought the Government of National Capital Territory of Delhi (Amendment) Act, 2021. The meaning of government was changed to the L-G and the entire administrative control of Delhi was given to him by making certain amendments in the 1991 Act. This amendment of 2021 was again challenged by the Delhi government before the Supreme Court, and the decision is pending. 

Since the 2018 and other judgments, the Supreme Court has held that federalism is the basic feature of the Constitution and it cannot be done away with by Parliament even by making a law or amendment. Therefore, to capture the powers of an elected government by the central government by indirect means is a violation of the concept of federalism which is part of the basic structure of the Constitution. 

But on the other hand, while giving arguments in favour of federalism, one should not forget that this concept is applicable only in the case of states, not UTs, which are a part of the Union government and under its direct control. Legislatures in UTs are given only for a limited purpose which should not be overreached by the governments elected there. If only election is the criteria, the day is not far when the mayor of Delhi will also start saying that he/she is more powerful than the chief minister of Delhi. 

—The writer is Advocate-On-Record, Supreme Court