Delhi Full Statehood Issue

Delhi Full Statehood Issue

How the GNCTD (Amendment) Act affects functioning of Delhi Assembly

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 239AA and 239AB

Mains level : Paper 2- Effect of GNCTD (Amendment) Act on functioning of Delhi Assembly

The article highlights the implications of the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 on functioning of Assembly and its committees.

Context

The Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 has been criticised as a retrograde law. However, what deserves equal attention is the Act’s assault on the functioning of Delhi’s Legislative Assembly.

Background of GNCTD Act

  • The GNCTD Act was enacted in 1992.
  • Under the Act, Delhi Legislative Assembly was given the power to regulate its own procedure, as well as the conduct of its business.
  • This sought to realise a delicate balance reflecting Delhi’s unique constitutional position: neither full state nor a centrally governed Union Territory.

How amendment affects functioning of Assembly

  • Its standards of procedure and conduct of business have been firmly tethered to that of the Lok Sabha, depriving Delhi’s elected MLAs of an effective say in how their Assembly should be run.
  • The Amending Act prohibits the Assembly from making any rule enabling either itself or its committees to consider any issue concerned with “the day-to-day administration of the capital” or “conduct inquiries in relation to administrative decisions”.
  • The most significant impact of this shall be on the exercise of free speech in the Assembly and its committees.
  • The amendment impeded the Assembly from performing its most basic legislative function — that of holding the executive to account by restricting its ability to freely discuss matters happening in the capital.

Impact on committees

  • The deliberations and inputs of committees often pave the way for intelligent legislative action.
  • In a way, they act as the eyes and ears for the whole House, which has neither the time nor the expertise to scrutinise issues in depth.
  • It would be impossible for committees to perform this function without the power to conduct inquiries.
  • Pre-emptively injunct a committee from conducting an inquiry “in relation to the administrative decisions” (an extremely broad exception) completely negates the ability of committees to function effectively as the Assembly’s advisors and agents.
  • The quality of legislative work emanating from the Assembly is thus ultimately bound to suffer.

Consider the question “What are the reasons for frequent disputes between Delhi government and the Lt. Governor? Would the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 succeed in ending that trend?” 

Conclusion

The amendment deprive the Delhi Assmbly of its very basic functions and render it a ‘legislature’ in name only. Surely, Delhi’s voters deserve better than that. The Government need to reconsider the provisions of the amendment act.

Delhi Full Statehood Issue

Centre notifies GNCT Act that gives more powers to Delhi L-G

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 239AA

Mains level : Paper 2- GNCT of Delhi Amendment Act notified by the Centre

GNCT Act comes into effect

  • The Ministry of Home Affairs (MHA) issued a gazette notification stating that the provisions of the Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021, would be deemed to have come into effect from April 27.
  • The Act defines the responsibilities of the elected government and the L-G along with the “constitutional scheme of governance of the NCT” interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.

What the Amendment seeks to achieve

  • The Act will clarify the expression Government and address ambiguities in legislative provisions.
  • It will also seek to ensure that the L-G is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to clause (4) of Article 239AA of the Constitution.
  • Clause (4) of Article 239AA provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.
  • Now Act will also provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.

Delhi Full Statehood Issue

Ending ambiguity in Delhi government through amendment to NCT Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 239AA and 239AB

Mains level : Paper 2- Amendments to NCT Act

The article highlights the objectives of amendments to the Government of the National Capital Territory (NCT) of Delhi Act.

Background of Article 239AA and 239AB

  • On December 20, 1991, Home Minister S B Chavan tabled the Constitution Amendment Bill in the Lok Sabha to add Article 239AA and 239AB to our Constitution.
  • The Bill was passed unanimously with all 349 members in the Lok Sabha supporting the bill.
  • The amendment paved the way for setting up a legislative assembly and a council of ministers for the National Capital Territory (NCT) of Delhi.

What the recent amendment to NCT Act seeks to achieve

  • The amendments aimed to clear ambiguities in the roles of various stakeholders.
  • It also seeks to provide a constructive rules-based framework for stakeholders within the government of Delhi to work in tandem with the Union government.
  • The amendment that was passed by Parliament aims to bring in consistency that the Delhi government has acknowledged and course-corrected on.
  • As the Act now has the President’s assent, we also need to ensure that the LG is made more accountable.
  • This can be done by stipulating a maximum time limit to decide on matters that are referred to the LG in the case of legislative proposals and administrative matters in the rules.
  • The constitutional amendment passed in 1991 empowers the Parliament to enact laws supplementing constitutional provisions.
  • Similarly, the Government of NCT of Delhi also has the power to enact laws regarding matters specified under the state list and concurrent list, to the extent these apply to a Union territory.
  •  In the case of the Government of NCT of Delhi, it has no legislative competence in matters pertaining to the police, public order, and land, which are in the state list but do not apply to Union Territories.
  • The risk of incremental encroachments on these subjects by the Delhi Legislative Assembly can have severe ramifications for Delhi.
  • Similarly, making the Delhi assembly rules consistent with the rules of the Lok Sabha or ensuring that the opinion of the LG is taken can only ensure clarity and foster an environment of co-operation.

Promoting cooperative federalism

  • The government has been promoting cooperative federalism, which is evident from the tangible steps that have been taken.
  • The creation of NITI Aayog, the establishment of the GST council, and the restructuring of central schemes are clear examples of promoting fiscal federalism.
  • Cooperative federalism requires an environment of trust and mutual cooperation.
  • A necessary condition for such an environment is the distinct delineation of roles and responsibilities, the removal of ambiguities, and the definition of a clear chain of command among stakeholders.
  • In this regard, it was important to define, without a doubt, who represents the government in the unique case of Delhi.

Consider the question “What are the objectives of the recent amendment to the NCT Act? What will be its implications for governance in Delhi?” 

Conclusion

Our national capital hosts the country’s legislature, the seat of the Union government, the judiciary, diplomatic missions, and other institutions of national importance. It deserves smooth functioning and cannot be subject to misadventures arising from the ambiguities in the roles and responsibilities of its stakeholders.

Delhi Full Statehood Issue

How amendment bill will affect Delhi’s administration

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 239AA

Mains level : Paper 2- Issues with the Bill to amend Delhi Government-LG relations

The article highlights the issues with the amendment bill introduced by the Centre to clarify the term ‘Government’.

Why Delhi was made Union Territory: Historical background

  • When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States.
  • The last two were administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
  • First, it was felt that if Delhi became a part of any constituent State of the Union, that State would sooner or later acquire a predominant position in relation to other States.
  • Second, the need for keeping the National Capital under the control of the Union Government was deemed to be vital in the national interest.
  • Third, it was felt that if Delhi became a full State, the administration of the National Capital would be divided into rigid compartments of the State field and Union field.
  • Conflicts would likely arise in vital matters, particularly if the two governments were run by different political parties.
  • Hence, Delhi was initially made a Part C State.
  • In 1951, a Legislative Assembly was created with an elected Chief Minister.
  • In 1956, when the Constitution of India was amended to implement the provisions of the States Reorganisation Act, only two categories, namely, States and Union Territories remained in the Indian Union.
  • Delhi then became a Union Territory to be administered by an Administrator appointed by the President.
  • Ten years later, the Delhi Administration Act, 1966 provided for a limited representative Government in Delhi through a Metropolitan Council comprising 56 elected Members and five nominated Members.

Balakrishnan Committee report

  • In 1989, the Balakrishnan Committee recommended that Delhi should continue to be a Union Territory but that there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers.
  • Based on this report, the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed.
  • They roughly restored the kind of governance system that was offered to Delhi in 1952: a Union Territory with a Legislative Assembly, a Council of Ministers and an elected Chief Minister.
  • This limited reincarnation has continued to hold the field to date, despite several efforts to progress to full or near-statehood.

LG-Delhi Government conflict

  • A Bench in 2018 ruled over the conflict and said that Parliament envisaged a representative form of Government for the NCT of Delhi.
  • The Bench also said that the Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.
  • The remaining issues of governance, especially in the matter of control over Delhi government servants, was remitted to two judges of the Court for further adjudication.
  • In 2019, there was a difference of opinion recorded in separate judgments by the two judges and the matter awaits hearing before a larger Bench. 

Issues with the Amendment Bill

  • The central government recently introduced a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression ‘Government’ in 2018 Supreme Court judgement.
  • The Bill effectively reduces the elected government to a mere vestigial organ and elevates the centrally appointed LG, to the position of a Viceroy with plenipotentiary powers.
  • It further provides that before taking any executive action to exercise powers of Government, the opinion of Lieutenant Governor shall be obtained on all such matters as may be specified by Lieutenant Governor.
  • The population of Delhi which counts among the highest in the world, will have an unrepresentative administration.
  • It is quite likely that the amendment act will end up being challenged in the constitutional courts.
  • The Supreme Court has already cautioned — “Interpretation cannot ignore the conscience of the Constitution.

Consider the question “Examine the issues with Government of National Capital Territory of Delhi (Amendment) Bill, 2021. Do you think that the Bill will avoid the conflict between the LG and the Delhi government?” 

Conclusion

The Amendment Bill should be reconsidered given its impact on the administration of the Delhi government.

Delhi Full Statehood Issue

National Capital Territory of Delhi (Amendment) Bill, 2021

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Special Status for New Delhi

Mains level : Delhi- LG issue

The Ministry of Home Affairs (MHA) moved the NCT of Delhi (Amendment) Bill, 2021 to the Lok Sabha where it proposed that “government” in Delhi means the Lieutenant Governor of Delhi.

What is the news?

  • The Bill gives discretionary powers to the L-G of Delhi even in matters where the Legislative Assembly of Delhi is empowered to make laws.
  • The Delhi state govt has criticized the bill saying that it seeks to drastically curtail powers of the elected government”, which is “against” the Supreme Court judgment of 2018.

NCT of Delhi (Amendment) Bill, 2021

  • Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
  • This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
  • The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

What purpose does the 1991 Act serve?

  • Delhi’s current status as a UT with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution.
  • The Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital.
  • For all practical purposes, it outlined the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the CM with respect to the need to furnish information to the L-G.

What is the 2018 Supreme Court Verdict?

  • In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
  • It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
  • The L-G was bound by the aid and advice if the council of ministers, it had said.
  • The Bench of then CJI status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
  • It had also pointed out that the elected government must keep in mind that Delhi is not a state.

Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”

What will change if the amendments are cleared by Parliament?

  • Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision.
  • It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision.
  • But the amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.
  • The Bill seeks to bar the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.

Does the L-G enjoy no discretionary power under the current arrangement?

  • The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA (4).
  • The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the SC verdict to keep the L-G in the dark about its decisions.
  • But the SC had also categorically pointed out that the L-G should not act in a mechanical manner without due application of mind so as to refer every decision of the CM to the President.

What are the state government’s fears?

  • From 2015 to 2018, the government was engaged in a constant battle with the Centre over policy decisions and the powers of the L-G with the elected government.
  • The SC judgment gave the Delhi govt a freer hand in terms of policy decisions.
  • The government insiders have maintained that it was because of the judgment that the government was able to clear policy decisions like giving free power to those using under 200 units, free bus rides for women.
  • The amendments will have far-reaching implications — beyond just the tussle between any political parties.

Back2Basics: Special Status for New Delhi

  • Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
  • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
  • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
  • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
  • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

Delhi Full Statehood Issue

structural issues with legislatures in Union Territories

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 239A

Mains level : Paper 2- Structural flaws in the composition of legislature of UTs

There are structural flaws in the provisions of the composition of legislature and the relationship between the council of ministers and the Administrator in the UTs.

Pattern in the resignations of MLAs

  • Recently, the resignations of MLAs from the Puducherry Assembly led to the fall of government there.
  • The same had happened in 2019 in Karnataka.
  • Resigning from the membership of the House is every member’s right.
  • But according to Article 190 of the Constitution, the resignation should be voluntary or genuine.
  • If the Speaker has information to the contrary, he or she is not obliged to accept the resignation.
  • But there is by now a familiar pattern to the resignations of Members of the Legislative Assembly.
  • Such resignations invariably lead to the fall of the government.

Purpose of providing legislature to UTs

  • The Constitution-makers/ Parliament provided a legislature and Council of Ministers to some of the UTs to fulfil the democratic aspirations of the people of these territories.
  • There was a realisation that the administration of these territories directly by the President through the administrators under Article 239 does not meet the democratic aspirations of the people.
  • The creation of a legislature and a Council of Ministers is logical and in consonance with the policy of the state to promote democracy.

Structural issues with legislature in UTs

1) Nomination of members and issues with it

  • A closer look at the relevant provisions in the Constitution reveals that this professed aim has often been sought to be defeated by the Union.
  • Article 239A was originally brought in, in 1962, to enable Parliament to create legislatures for the UTs.
  • A legislature without a Council of Ministers or a Council of Ministers without a legislature is a conceptual absurdity.
  • Similarly, a legislature that is partly elected and partly nominated is another absurdity.
  • The issue of nomination of members to the Puducherry Assembly had raised a huge controversy.
  • The Government of Union Territories Act provides for a 33-member House for Puducherry of whom three are to be nominated by the Central government.
  • So, when the Union government nominated three BJP members to the Assembly without consulting the government, it was challenged in the court.
  • Finally, the Supreme Court (K. Lakshminarayanan v. Union of India, 2019) held that the Union government is not required to consult the State government for nominating members to the Assembly and the nominated members have the same right to vote as the elected members.
  • There is provision for nomination of members to the Rajya Sabha [Article 80 (i)(a)].
  • But clause (3) of the Article specifies the fields from which they will be nominated.
  • But in the case of nomination to the Puducherry Assembly, no such qualification is laid down either in Article 239A or the Government of Union Territories Act.
  • This leaves the field open for the Union government to nominate anyone irrespective of whether he or she is suitable.
  •  As things stand, the law invites arbitrariness in dealing with the nomination of members to the UT legislature.

2) Administrator’s powers

  • The administrator has the right to disagree with the decisions of the Council of Ministers and then refer them to the President for a final decision.
  • The President decides on the advice of the Union government.
  • So, in effect, it is the Union government which finally determines the disputed issue.
  • Although in NCT of Delhi v. Union of India (2019), the Constitution Bench of the Supreme Court had said that the administrator should not misuse this power.
  • The bench also said that the Administrator should use it after all methods have failed to reconcile the differences between him/her and the Council of Ministers.
  • As a matter of fact, such conflicts between the administrator, who is the nominee of the President, and the elected government is inherent in the constitutional arrangement created for the UTs.

Consider the question “The conflicts between the administrator, who is the nominee of the President and the elected government is inherent in the constitutional arrangement created for the UTs. Comment.”

Conclusion

Experience shows that the UTs having legislatures with ultimate control vested in the central administrator are not workable. So far as the conspiratorial resignation by legislators to bring down their own government is concerned, the political class will have to get the better of the predatory instincts of political parties through constitutional or other means.

Delhi Full Statehood Issue

Bill coming on Delhi government and L-G functions

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 239AA

Mains level : Delhi govt. - LG power tussle

The Ministry of Home Affairs (MHA) is all set to introduce legislation to amend a 1991 Act pertaining to the powers and functions of the Delhi government and the Lieutenant Governor (LG).

What is the new bill?

  • The Bill is likely to clearly define the powers of the LG and the Delhi government on the lines of the Supreme Court judgment of February 2019.
  • It is likely to give more teeth to the LG’s office.

Why need such a law?

  • The Delhi UT government is often at loggerheads with the Centre on administrative matters in the Capital.

What made it to the news?

  • A Supreme Court Bench of Justices A.K. Sikri and Ashok Bhushan had, other than the question of services, given a unanimous verdict on the role of the two authorities.
  • In the February 14, 2019 verdict, the court upheld as “legal” the MHA’s 2015 notifications authorising the LG to exercise powers in relation to services.
  • It had directed the Anti-Corruption Branch (ACB) police not to take cognizance of offences against Central government officials.

SC confirms HC findings

  • The apex court confirmed the Delhi High Court’s finding that the ACB’s jurisdiction is confined to Delhi officials and statutory bodies and does not extend to Central government officials.
  • Last year, the MHA notified the rules for the newly created UT of J&K, where it provided a solution in case of difference of opinion between the LG and a Minister.
  • It ruled that if no agreement could be reached even after a month, the decision of the Lieutenant Governor shall be deemed to have been accepted by the Council of Ministers.

What are the key propositions?

  • According to changes proposed in the new Act, the LG could act in his discretion in any matter that is beyond the purview of the powers of the Assembly of Delhi.
  • This would be in matters related to the All India (Civil) Services and the ACB.

Back2Basics: Special Status for New Delhi

  • Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through 69th constitutional amendment.
  • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
  • That’s when Delhi was named as National Capital Region (NCT) of Delhi.
  • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
  • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

Delhi Full Statehood Issue

New Bill on powers of Delhi government, Lieutenant Governor

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 239AA

Mains level : Special provisions for NCT

The Ministry of Home Affairs (MHA) is likely to introduce legislation in the ongoing Parliament session to amend a 1991 Act pertaining to the powers and function of the Delhi government and the Lieutenant Governor.

Try this PYQ:

Q. Consider the following statements

  1. Union territories are not represented in the Rajya Sabha.
  2. It is within the purview of the Chief Election Commissioner to adjudicate the election disputes.
  3. According to the constitution of India, the Parliament consists of the Lok Sabha and the Rajya Sabha only.

Which of the statement(s) given above is/are correct?

(a) Only 1

(b) 2 and 3

(c) 1 and 3 only

(d) None

Key propositions of the Bill

  • The Bill proposes to clearly spell out the functions of the Council of Ministers and the Lieutenant-Governor (L-G) by giving more discretionary powers to the L-G.
  • As per the Bill, the L-G could act in his discretion in any matter that is beyond the purview of the powers of the Legislative Assembly of Delhi in matters related to the All India (Civil) Services and the Anti Corruption Branch.
  • It will also give more teeth to the L-G, and the validity of any decision taken as per such discretion shall not be questioned.

Back2Basics: Special provisions for New Delhi

  • The Union Territory of Delhi with a Legislative Assembly came into being in 1991 under Article 239AA of the Constitution inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991’.
  • It said that the UT of Delhi shall be called the National Capital Territory of Delhi.
  • The administrator thereof appointed under Article 239 shall be designated as the Lieutenant-Governor.
  • According to the existing Act, the Legislative Assembly of Delhi has the power to make laws in all matters except public order, police, and land.

Delhi Full Statehood Issue

Jurisdictional conflict in the running of Delhi Government

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 239AA and Article 239AB

Mains level : Paper 2- Conflict between Lt. Governor and the Delhi Government

The article analyses the tussle between the Delhi Government and the Lt. Governor.

What the 2018 SC judgement was about

  • The Supreme Court in Government of NCT of Delhi vs. Union of India (2018) decided on the conflicts between the government of NCT and the Union Government and its representative, the Lieutenant Governor.
  • It reminds the Lt. Governor what his real functions are.
  •  It tells the State government that it should remember that Delhi is a special category Union Territory.
  • It lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
  • It did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government.

Settled issues and clarifications

  • The Supreme Court affirming that the Lt. Governor is bound to act on the aid and advice of council of ministers except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
  • The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government.
  • However, Article 239AA (4) (proviso) which says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision.
  • If the Lt. Governor thinks that the matter is urgent he can take immediate action on his own.

How Article 239 AA(4) matters

  •  Lt. Governor can frustrate the efforts of the government, by declaring that there is a difference of opinion on any issue and refer it to the President.
  • Refering matter to the President in reality means the Union Home Ministry.
  • The Lt. Governor being its representative, it is easier for him to secure a decision in his favour.
  • The State government will be totally helpless in such a situation.
  • The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point.
  •  When the government decided to appoint them, the Lt. Governor referred it under proviso to Article 239AA (4) to the President stating that there is a difference of opinion.
  • This episode clearly points to the fault lines which still exist in the power equations in the capital’s administrative structure.

But, can Lt. Governor refer routine administrative matter to the President?

  • A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that he cannot.
  • The Supreme Court says “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.
  • Court also says that “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule”.
  • The President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.

Executive powers and legislative powers

  • Parliament can legislate for Delhi on any matter in the State List and the Concurrent List.
  • But the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.
  • The executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
  • The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4).

Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”

Conclusion

In the Constitutional scheme adopted for the NCT of Delhi Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.

Delhi Full Statehood Issue

[op-ed of the day] The primacy of the elected

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing MUch

Mains level : Puducherry Governance Crisis should be resolved as soon as possible.

Note- Op-ed of the day is the most important editorial of the day. Aspirants should try to cover at least this editorial on a daily basis to have command over most important issues in news. It will help in enhancing and enriching the content in mains answers. Please do not miss at any cost.

CONTEXT

1.Federalism Endangered

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.

2.President’s Rule

  • 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

Background

  • 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.

Way Forward

Respecting federalism

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.

Conclusion

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.

Delhi Full Statehood Issue

[op-ed snap] Power shift

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Lt. Governor

Mains level : Madras High Court Judgement will resolve power tussle in Puducherry.

CONTEXT

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.

Verdict

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.

Conclusion

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.

Delhi Full Statehood Issue

LG’s role in Puducherry

Note4Students

From UPSC perspective, the following things are important :

Prelims level : LG: Powers and Functions

Mains level : LG of Puducherry vs. LG of Delhi

  • 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.

Back2Basics

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.

Delhi Full Statehood Issue

[op-ed snap] Re-imagining Delhi

Note4students

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.


NEWS

CONTEXT

The battle over the legislative and executive control of the National Capital Territory of Delhi remains unresolved.

Court’s Verdict

  • 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.

Approaching Solution

  • 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.

Conclusion

A mature discussion between stakeholders that looks beyond short-term political gains holds the potential to resolve the embedded contradiction.

source

Should Delhi be given statehood?

  • Why in news?
  • Background
  • What is the present status of Delhi?
  • Arguments favoring statehood in Delhi
  • Why not to give statehood?
  • The way ahead

Why in news?

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.

Background

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

References:

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