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Dismantling the Planning Commission and transferring its power to make state grants to the Finance Ministry; introducing terms of reference to the Finance Commission which threaten to lower the revenue share of the southern States; and the partisan use of the Governor’s office to appoint Chief Ministers in cases of hung Assemblies.
The most blatant abuse of power was the imposition of President’s Rule in Opposition-ruled Arunachal Pradesh and Uttarakhand, decisions the Supreme Court subsequently held as unconstitutional.
Further, through the Lieutenant Governor (LG), the Centre ran a protracted war with the Delhi government which brought its administration to a stalemate until the Supreme Court affirmed the primacy of the elected government.
A similar long-running battle between the LG and Chief Minister of Puducherry has now reached the Supreme Court.
Distinct provisions in Puducherry
Since the appointment of Kiran Bedi as the LG in May 2016, Puducherry Chief Minister V. Narayanasamy has protested her continual interference in the daily affairs of the Puducherry government and running an alleged parallel administration.
When this was legally challenged, the Madras High Court quashed the clarifications issued by the Union government and ruled that the LG must work on the aid and advice of the Council of Ministers and not interfere in the day-to-day affairs of the government.
The Union government challenged this decision in the Supreme Court where a vacation Bench passed interim orders recently restricting the Puducherry cabinet from taking key decisions until further hearing.
Puducherry and Delhi comparison
Puducherry, like Delhi,is a Union Territory with an elected legislative Assembly and the executive constituted by the Lieutenant Governor and Council of Ministers.
However, Puducherry and Delhi derive their powers from distinct constitutional provisions.
1.Article 239 A and 239 AA-
While Article 239AA lays out the scope and limits of the powers of the legislative assembly and council of ministers for Delhi, Article 239A is merely an enabling provision which allows Parliament to create a law for Puducherry.
No restrictions – Interestingly, while Article 239AA restricts Delhi from creating laws in subjects such as police, public order and land, no such restriction exists for Puducherry under Article 239A.
Broader lawmaking power than Delhi – In fact, the Government of Union Territories Act, 1963 which governs Puducherry vests the legislative assembly with the power to make laws on “any of the matters enumerated in the State List or the Concurrent List”. Hence, the legislative and executive powers of Puducherry are actually broader than that of Delhi.
2.Limited power of LG –
After analysing the laws and rules governing Puducherry, the Madras High Court held that the LG has very limited independent powers.
Article 239B – Under Article 239B, the LG can issue an ordinance only when the Assembly is not in session and with the prior approval of the President.
On the difference of opinion – If there is a “difference of opinion” between the LG and the cabinet on “any matter”, like in Delhi, the LG can refer it to the President or resolve it herself if it is expedient.
Only in exceptional” situations – However, the Supreme Court in the NCT Delhi case held that “any matter” shall not mean “all matters” and it should be used only for “exceptional” situations. Hence, there is no legal basis for the LG to exercise powers independently and bypass the elected government of Puducherry.
Primacy of elected government – The Supreme Court, in the NCT Delhi case, rightly employed a purposive interpretation of the Constitution to hold that since representative government is a basic feature of the Constitution, the elected government must have primacy.
Upholding High Court’s Order – Given this precedent and the fact that Puducherry has lesser legal restrictions on its powers, the Supreme Court should uphold the Madras High Court judgment and ensure that the LG acts only as per the aid and advice of the elected government.
Upholding Federalism – While Puducherry may not be a “State” under the Constitution, the principle of federalism should not be restricted to States but also include the legislative Assemblies of Union Territories and, arguably, councils of local governments.
As more centralising measures such as simultaneous elections to Parliament and State Assemblies are being proposed by the Centre, it is important to reaffirm the values of federalism at every forum.
The Madras High Court verdict that the Lieutenant Governor of Puducherry should not interfere in the day-to-day administration of the Union Territory is a serious setback to the incumbent Administrator, Kiran Bedi. She has been locked in a prolonged dispute over the extent of her powers with Chief Minister V. Narayanasamy, who says she has been disregarding the elected regime and seeking to run the Union Territory on her own.
1. Decisions are Binding on officials -The court has laid down that “the decision taken by the Council of Ministers and the Chief Minister is binding on the Secretaries and other officials.”
2. Inspired by Supreme Court – Inspired by the Supreme Court’s appeal to constitutional morality and trust among high dignitaries, the High Court has also reminded the Centre and the Administrator that they should be true to the concept of democratic principles, lest the constitutional scheme based on democracy and republicanism be defeated.
3. L-G has no independent decision-making powers –
The judgment is based in last year’s Constitution Bench decision on the conflict between the elected regime in the National Capital Territory (NCT) and its Lt.Governor.
The five-judge Bench had ruled that the L-G has to either act on the ‘aid and advice’ of the Council of Ministers, or refer to the President for a decision any matter on which there is a difference with the Ministry, but has no independent decision-making powers.
The High Court also says the Administrator is bound by the ‘aid and advice’ clause in matters over which the Assembly is competent to enact laws.
The L-G’s power to refer any matter to the President to resolve differences should not mean “every matter”, the court has cautioned.
Difference between Delhi and Puducherry
1. The difference in status – Justice R. Mahadevan, who delivered the Madras High Court judgment, is conscious of the difference in status between Delhi and Puducherry.
2. Constitutional and parliamentary Law – The Puducherry legislature is the creation of a parliamentary law, based on an enabling provision in Article 239A of the Constitution, whereas the NCT legislature has been created by the Constitution itself under Article 239AA.
3. NCT is sui generis – The Supreme Court had described the NCT as sui generis. At the same time, the NCT Assembly is limited in the extent of its legislative powers, as it is barred from dealing with the subjects of public order, police and land.
More Power to representative Government
However, looking at the Business Rules as well as other statutory provisions on Puducherry, the judge has sought to give greater credence to the concept of a representative government.
He has set aside two clarifications issued by the Centre in 2017 to the effect that the L-G enjoys more power than the Governor of a State and can act without aid and advice.
In view of the Constitution Bench judgment on Delhi, he has differed with another Madras High Court decision of 2018 in which the LG’s power to act irrespective of the Cabinet’s advice was upheld.
In the event that the latest judgment is taken up on appeal, a key question may be how far the decision of the five-judge Bench on the limits of the Delhi L-G’s powers would indeed apply to Puducherry.
The Madras High Court has that the Lieutenant-Governor (L-G) of Puducherry could not interfere with the day-to-day administration of the Union Territory when an elected government was in place.
The court said incessant interference from the L-G would amount to running a “parallel government.”
What did the court say?
The Central government as well as the Administrator [the term used in the Constitution to refer to the Lieutenant-Governor] should be true to the concept of democratic principles.
Otherwise, the constitutional scheme of the country of being democratic and republic would be defeated.
The judge made it clear that government secretaries were bound to take instructions from the ministers concerned and the Council of Ministers, headed by the CM, besides reporting to them on official matters.
The secretaries are not empowered to issue orders on their own or upon the instructions of the Administrator.
There lies a difference: Delhi and Puducherry
The court also went on to point out the differences between the powers conferred on the legislatures of Puducherry and Delhi under Articles 239A and 239AA of the Constitution.
The court said though Article 239AA imposes several restrictions on the legislature of Delhi, no such restrictions had been imposed explicitly in the case of Puducherry under Article 239A.
While the LG of Delhi is also guided by the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the LG of Puducherry is guided mostly by the Government of Union Territories Act, 1963.
LG of Puducherry Vs. LG of Delhi
The LG of Delhi enjoys greater powers than the LG of Puducherry.
The LG of Delhi has “Executive Functions” that allow him to exercise his powers in matters connected to public order, police and land “in consultation with the Chief Minister.
Under the constitutional scheme, the Delhi Assembly has the power to legislate on all subjects except law and order and land.
However, the Puducherry Assembly can legislate on any issue under the Concurrent and State Lists.
However, if the law is in conflict with a law passed by Parliament, the law passed by Parliament prevails.
Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure
From UPSC perspective, the following things are important:
Prelims level: Not much
Mains level: Note important features of Delhi Exceptionalism and ways to resolve the long standing crisis.
The battle over the legislative and executive control of the National Capital Territory of Delhi remains unresolved.
The split verdict by a two-judge bench comprising Justices A K Sikri and Ashok Bhushan has, in essence, affirmed the power of the Union government (through the office of the lieutenant governor) over the elected state government on crucial matters.
The Centre remains the cadre-controlling authority in Delhi and the Delhi Anti Corruption Branch cannot investigate central government officers.
The two judges, however, differed on whether the state government can manage cadre below the rank of joint secretary and the matter will now be referred to a larger bench.
Factors responsible for the conflict
The State government has been choosing spectacle and agitation over quiet and patient negotiation.
The Centre, through successive LGs and the home ministry, has tried to hobble a government with an impressive mandate using Delhi’s constitutional peculiarity.
It’s legally a Union Territory with an elected government whose powers are circumscribed.
Both the current Union and Delhi governments enjoy impressive mandates. Unfortunately, instead of using their opportunity to bring in a much-needed redefinition of the division of powers, they have passed the buck to the courts.
Delhi’s exceptionalism, the power imbalance in favour of the Centre, emerges from the needs of a national capital — the seat of government and power, the nerve centre of administration.
It is only through a mature politics that the root cause of the over-politicisation of governance.
The courts are limited by the letter of the law, by the contours of the distribution of powers laid down in the Constitution and previous judgments.
Delhi needs is a bold re-imagination of the skewed federal contract that currently determines its executive and legislative boundaries.
The tussle between the Centre and state, between the people and the law, can only be addressed through a new idea of statehood, one which recognises that sovereignty ultimately derives from the people.
A mature discussion between stakeholders that looks beyond short-term political gains holds the potential to resolve the embedded contradiction.
Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure
From UPSC perspective, the following things are important:
Prelims level: Not much
Mains level: Note important features of constitutionalism and various terms described in the editorial
SC’s Delhi verdict
Already much has been said and more will come on the nature and scope of constitutional powers of Delhi’s elected government and the Union
But this judgment provided the conception of “constitutional renaissance” which was finely elaborated by the entire bench of SC hearing the case
One does not know how the political class would respond to this momentous exposition of six key constitutional notions:
The idea of constitutional renaissance
It was first sounded in Manoj Narula (2014) judgment
It stands severally described now as “a constant awakening as regards the text, context, perspective, purpose, and the rule of law”, an awakening that makes space for a “resurgent constitutionalism” and “allows no room for absolutism” nor any “space for anarchy”
The term “rational anarchism” has “no entry in the field of constitutional governance or the rule of law” and by the same token constitutional text and context resolutely repudiate the lineages of absolutism or the itineraries of dictatorship
One may then say that “constitutionalism” is the space between “absolutism” and “anarchy” and its constant repair and renewal is the prime function of adjudication
That awakening is a constant process; renaissance has a beginning but knows no end because everyday fidelity to the vision, spirit and letter of the Constitution is the supreme obligation of all constitutional beings
One ought to witness in daily decisions an “acceptance of constitutional obligations” not just within the text of the Constitution but also its “silences”
To thus reawaken is to be “obeisant to the constitutional conscience with a sense of constitutional vision”
How to achieve the renaissance
Courts should adopt that approach to interpretation which glorifies the democratic spirit of the Constitution
“Reverence” for the Constitution (or constitutionalism) is the essential first step towards a constitutional renaissance
Rights of the people
People are the true sovereigns, never to be reduced to the servile status of being a subject; rather as beings with rights, they are the source of trust in governance and founts of legitimacy
All forms of public power are held in trust
The relatively autonomous legislative, executive, administrative and adjudicatory powers are legitimate only when placed at the service of constitutional ends
Idea of constitutional morality
It provides a principled understanding for unfolding the work of governance
It is “a compass to hold in troubled waters”. It “specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution”
It also enables us to hold to account our institutions and those who preside over their destinies
Constitutional morality balances popular morality and acts as a threshold against an upsurge in mob rule
The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain the institutional integrity and the requisite constitutional restraints
The doctrine of constitutional objectivity
This “lighthouse” of constitutional interpretation demands of those in power to act “justly and reasonably”
Mains level: 2016 Question: Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if any that have led to recent reported conflicts between the elected representatives and the institution of the Lieutenant Governor in the administration of Delhi. Do you think that this will give rise to a new trend in the functioning of the Indian federal politics?
The problem of jurisdictional conflicts between Delhi’s elected government and the lieutenant governor (LG) is attributable to Article 239 AA of the Indian Constitution.
Incorporated in the Constitution in 1992, it creates a “special” constitutional set up for Delhi.
The Delhi High Court judgment: LG is the only decision-making authority in the National Capital Territory.
Presently, the Supreme Court is looking into the powers of the elected government and those of the LG.
Whether the elected government is the final authority in respect of matters assigned to it by the Constitution?
Whether the LG has primacy when a difference of opinion arises between him and his council of ministers on matters of governance?
Elected Government as final authority
As per Article 239 AA (3) (a), the Delhi assembly can legislate on all those matters listed in the State List and Concurrent List as are applicable to union territories, excluding public order, police and land. These three items are reserved for the LG.
As per Article 239 AA and 239 AB (a): the council of ministers is responsible for Delhi’s administration and if it fails in its functions, it will be removed by the president.
But the council of ministers cannot be removed for the breakdown of the constitutional machinery unless they are vested with the power to take final decisions on matters of administration.
Thus, the vesting of all powers in the LG in respect of matters which come within the jurisdiction of the assembly is not in conformity with the scheme of Article 239 AA.
Primacy case of difference of opinion
The proviso to Clause (4) of Article 239 AA: A LG, could disagree with many decisions of elected government and refer them to the president, which means the central government.
This virtually nullifies the executive power vested in the council of ministers
But the purpose of the constitutional amendment was to provide a democratic government for Delhi and not to enhance the powers of the LG.
Thus, it cannot be the intention of the lawmakers to take away the powers vested in the elected government and establish the primacy of the LG.
Like limiting the scope of “Whip’(Kihoto Hollohan v. Zachillu). it may be a fit case for the Supreme Court to read down the proviso to mean that the LG would refer to the president only matters concerning conflict of opinion on items reserved for the LG and those assigned to the assembly.
Recently, a Division Bench of the Delhi High Court cleared the air that Delhi is a Union Territory with the Lieutenant Governor as its administrator, and not a state
HC had trimmed the Kejriwal Cabinet’s girth by quashing several notifications issued by it without consulting Lieutenant Governor Najeeb Jung
Federal dispute? The court did all this by dismissing the Delhi government’s argument that the AAP-Centre tussle was a ‘classic’ federal dispute
It observed that not every dispute between the Centre and a State government could be classified as a ‘federal dispute’
Constitutional jurisdiction of HC: HC relegated the wrangle to the status of a mere political tug-of-war on ‘services’, matters over which the High Court has full jurisdiction to adjudicate under Article 226 of the Constitution
The relevant laws are Article 239AA of the Constitution, the Govt of NCT of Delhi Act, 1991 (GNCT Act), the rules formulated under this Act (Transaction of Business Rules), and the relevant judicial pronouncements.
Although the separation of power between Delhi CM and LG is not very clearly demarcated but it can be reasonably suggested that the LG’s discretionary powers do not extend to the appointment of the Chief Secretary without the “aid and advice” of the CM.
The SC in the P. Royappa(1974) case had ruled that Chief Secretary is the lynchpin in smooth administration and it is necessary that there is good rapport between CS and CM. This ruling gives CM an upper hand in appointment of the CS.
Section 41 of GNCT Act deals with the discretionary powers of the LG and there is no such law granting discretion to the LG for making such appointments currently.
LG has deemed all appointments made by the govt in last four days as invalid since they did not have his approval.
He also contested AAP government’s instructions to the officials to not route files through his office, saying he has been vested with power to decide on major policy issues.
Constitutional provisions and norms laid down in Government of NCT of Delhi Act and Transaction of Business rules of the Delhi Government give LG wider powers over the policy issues as compared to other states.
Delhi CM accused LG of acting unconstitutionally and also removed the Principal Secretary to the Services Department, who had issued the orders to appoint Ms. Gamlin Acting Chief Secretary, on LG’s orders.
LG not only revoked and termed the order ab initio void, he also defended his decisions saying his Secretariat had not taken a single decision which was in violation of the provisions of the Constitution.
Recently Supreme Court has sought more clarity on the scope and boundaries of the relationship between the Delhi government and the Centre as at times, both the Centre and Delhi government contest each other’s right to administer and govern the National Capital and demands have been raised to give statehood to Delhi.
The elected governments have time and again felt crippled in decision-making as the assembly does not have powers like other state assemblies. All political parties that have been in power in Delhi have lamented this and raised the demand for full statehood for the national capital.
What is the present status of Delhi?
Presently, Delhi enjoys the character of a special Union Territory that has some unique institutions like an elected Legislative Assembly and a High Court.
In 1991, the Parliament, through the 69th amendment, introduced Article 239AA (Special Provisions with respect to Delhi) and conferred the right upon the people of the NCT of Delhi to elect their own legislature and government to make laws under certain entries of the state list of the Seventh Schedule of the Constitution and execute these laws respectively.
This amendment, however, did not confer full statehood upon Delhi and powers with respect to public order, land and police remained with the Union government.
Argument favoring statehood to Delhi
Two power centres create confusion
In the current system, power is divided between the chief minister and the Central government through the LG. This dual control creates an inherent tension between the two power centres.
Union government exercises immense authority
Though Delhi Assembly is given the powers to govern and make laws on all but three subjects – public order, police and land but the Union government has been violating this constitutional provision and has been exercising authority on several subjects.
Law & order should be the state government’s responsibility
Delhi Police reports to the Union Home ministry and this ties their hands in ensuring maintenance of law and order in the capital. To avoid the tussle, the Centre can create and deploy a central police force for guarding its buildings and for diplomatic duties. For law and order duties, Delhi’s elected government must be in full command.
Delhi’s land cannot be under Centre’s control
The Delhi government cannot decide on its own the use that the city’s land should be put to. This leads to conflict at times.
Delhi does not have its own officers
Each state of India has its own Public Service Commission that recruits bureaucrats to run the state government’s administrative machinery. Delhi, being a Union territory, does not have a cadre of officers of its own and is part of a common cadre shared with other UTs.
It is argued that if Delhi had its own cadre, like all states have, the impasse between the offices of the CM and the LG would not have arisen.
National capitals all over the world have sufficient powers
Experts say even if some national capitals like Washington DC, London and Paris are not states, all of them have a governance structure that gives the local government legislative, financial and administrative powers. Delhi has none of these.
As Delhi expands, clarity over jurisdiction of the local government will become increasingly imperative.
Some experts have argued that the assembly should be dissolved and the Centre be given full charge of the national capital. However, the abolition of an assembly once created will mean taking away the democratic rights of the people.
Why not to give the statehood?
Delhi is different than other UTs because as the nation’s capital, it must reflect the best that the country offers. And that is only possible if land-use, zoning plans and building regulations are managed in consonance with the standards expected of a capital city. Parallels cannot be drawn with state capitals like Mumbai, Bangalore or Chennai (although that is constantly being done).
Statehood would bring land allocation under the city government, whose concern for the country’s capital would yield to satiating local demands.
In the national capital, the protection of dignitaries and the maintenance of public order are the highest priorities. The upkeep of maximum standards of security is how the safety of the capital is judged. An attack on a Union minister or diplomat would guarantee an ‘unsafe’ tag not just for Delhi but the country. So, police cannot be kept solely in the hands of state government.
An important point against the grant of statehood to the Delhi is the inability of its city government to bear the cost of police salaries and the pension liabilities of all city government employees, which are today borne entirely by the Centre.
It would weaken the case for delegation of authority under various statutes which is feasible and a necessity.
What’s the way ahead
Full statehood will definitely bring better opportunities for the residents of Delhi and financial increments for the government’s budget but not without its own share of responsibilities like provision of top security infrastructure for law & order and internal security
From the point of view of the citizens of Delhi, what matters is that systems are transparent and day-to-day work is attended to. This does not need statehood—only good governance