Delhi, a history of governance: A look back at the legal journey from 1858 to 2018

[dropcap]T[/dropcap]he call for Delhi's statehood by Chief Minister Arvind Kejriwal is not a novel demand. In the history of our country's capital, it has echoed before and was put to rest by the Balakrishnan Committee of 1989 recommending that Delhi remain a union territory. Although, a few years post that, Delhi was granted extra powers, making it stand out from the list of seven other union territories in the country.

Pre-Independence era

Before Independence, Delhi was a part of the province of Punjab, and was annexed to it under the Government of India Act, 1858. In 1911, Delhi not only became the capital of India, and the Delhi tehsil was separated from Punjab, and became a Chief Commissioner's Province. The first specific law to govern Delhi came into the picture in 1912, where the Delhi Laws Act came into force, and as an effect, the Chief Commissioner was empowered to determine application of laws by issuing appropriate notification in the Gazette of India. In practice, largely the laws applicable to Punjab were also made applicable to Delhi.

With the Government of India Act, 1919, and Government of India Act, 1935, Delhi was retained as a centrally administered territory. The 1935 Act, however, did attempt to decentralise powers to a federation but given that the decentralisation was still subject to the final consent of the Viceroy it was rejected by the Indian National Congress as a form of unacceptable diarchy.

Just before the country gained independence, the Pattabhi Sitaramiyya Committee gave its report about the required changes in the administrative set up of Chief Commissioners' Province in the Constitution. With specification to Delhi, it was suggested that it would not be fragmented into Old and New Delhi, but kept intact with Central Government enjoying certain special powers. The High Court for Delhi was recommended to exercise both original, and appellate jurisdiction. For the governance arrangement, Delhi, along with Coorg, and Ajmer-Merwara, was suggested to function under a Lieutenant Governor, to be appointed by the President, but along with the administration by a Council of of Ministers, responsible to the Legislature, and an elected legislature, like other provincial legislatures, but with some exceptions.

After the Constitution

In 1950, when the Constitution of India came into force, all the provinces of Chief Commissioners became Part C states, and the Delhi Laws Act, 1950 was brought into force to continue the enforcement of applicable erstwhile laws in the Chief Commissioner's Province in Part C states as well. With the enactment of the Government of Part C States Act, 1951, the  Legislative Assemblies in these states was empowered to make laws on all matters except, public order, police, constitution and powers of municipal corporations and local authorities, lands and buildings bested in possession of Union situated in Delhi, or any offences on these subjects.

In 1952, the legislative assembly of Delhi came into existence. The structure of this assembly was directly elected unicameral legislature with reservation of seats for scheduled castes. In the background, the country was also undergoing state reorganisation, and with the passing of the State Reorganisation Act, 1956, the Indian states were limited to being "States and Union Territories", eliminating the previous system of system of Part A, B, C, and D States.

While States were governed by a Council of Ministers appointed through elected representatives from the Legislative Assemblies; Delhi, like other Union Territories had an "Administrator" appointed by the President.

Delhi is a special Union Territory

Through 1961 and 1962, by way of the 10^th, 12^th , and 14^th Constitutional Amendment, the list of Union Territories was extended to Dadra and Nagar Haveli, Goa, Damn and Diu, and Pondicherry. At this juncture, although with the enactment of the Government of Union Territories Act, 1963, UTs were provided Legislative Assemblies and Council of Ministers, this Act was not applicable on Delhi.

Especially for Delhi, keeping its governance in mind, a special act, the Delhi Administration Act, 1966 was especially enacted for to provide it with limited representative government through metropolitan Council, comprising of 56 elected members and five nominated members.

To reconsider the structure allocated to Delhi, In 1975, a task force was set up in the form of the Prabhu Committee, which looked into the question of improving administration in Delhi. It made a few key recommendations such as the delegation of enhanced financial and administrative powers to Delhi administration; setting up of statutory authority "Delhi Metropolitan Development Authority" to ensure coordinated development and attend to issues and problems concerning Delhi. However, no changes to the Delhi Administration Act, 1966 was made.

Balakrishnan Committee

In 1987, the Committee on Reorganisation of Delhi Set-Up was appointed and it released its report, colloquially known as the Balakrishnan Report in 1989 after the Chairman of the Committee, S. Balakrishnan. As a part of this committee, the demands for statehood in Delhi arose. With the population influx in the capital city, it was pointed out that an effective representative democratic system needs to be implemented to safeguard the rights of a large population. The absence of a fully empowered Legislative Assembly, entrenches an unaccountable form of government for the citizens residing in the capital city.

It was also brought to notice that the current set up, with overlapping roles of multiple authorities such as the Metropolitan Council, the Municipal Corporation of Delhi, the New Delhi Municipal Committee, the administrative functioning of Delhi was suffering. One of the key arguments made in favour of granting Delhi statehood was that the apprehensions about the conflict between Central and State Government (in case Delhi is granted Statehood) would be detrimental to the functioning of the national capital territory were "unfounded". (Clearly, in hindsight they were not.)

The Constitutional framework ensures that even with two different political parties in power in Centre and State, it is designed to work smoothly. The political maturity gained by the people of this country is sufficient to guard against irresponsible behaviour on part of any state government set up in the national capital. It further assured that the Union Government has adequate powers vested by the Constitution to deal with states acting contrary to the requirement of national interest.

The Committee embarked on an intensive study of the set up of Delhi, and acknowledged the difficulties in managing capital cities in a federal framework. It highlighted the similarity of issues faced by capital cities in different parts of the world where the central government wants to retain control over the national capital owing to the need to develop it as a central point for the country as a whole. It needs to "maintain a high standard with regards to municipal services and civic amenities as also exercise sufficient control over maintenance of peace, land use, etc." However, on the other side, it clashes with the greater demands for autonomy, and self government by the residents of the capital territory.

The report points to the difficulty of eroding a central stronghold from the capital territory and states: "It [the capital territory] is the hub of a country with most of its important national institutions such as the head of the state, the national legislature, the national executive, the apex judiciary, and the national press located therein. It is also the place where foreign diplomatic missions and international organizations are located… It reflects the ethnic, cultural, and socio-political diversity of the country and serves as a window for the rest of the world to see the country in miniature. It is obviously in the national interest that the highest possible standards should be maintained in the administration of the national capital and that its administrative structure should be designed to meet all these special features."

However, after deliberations, the Committee rejected the proposal of full statehood for Delhi and specifically said that it is not possible to identify the subjects in relation to which the functions of the Council of Ministers of Delhi should be excluded, because in the case of the national capital, the interests of the Centre may relate to most of the matters in the State List and not merely to public order and peace. This power, as referred here would be in the form of concurrent legislative power, and not executive power.

However, as Delhi was not included in the Union Territories Act, or the status given to other UTs under the Constitution, the Committee did agree to give the national capital a special status, and the union territory to have a legislative assembly, a council of ministers with appropriate powers, responsible to this Assembly. This Legislative Assembly was given powers to make laws for the whole or any part of the then national capital on matters under the State list, with the exception on matters with respect to land, police, and public order.

Present scheme under Article 239AA

With the Constitution 69^th Amendment Act, 1991, the recommendations of the Committee were given effect, and Article 239AA and Article 239AB were inserted in the Constitution. With this, Delhi was constitutionally given the title of "National Capital Territory of Delhi" and would be administered by a Lieutenant Governor (LG) who was to be appointed by the President. A Legislative Assembly was to be constituted. A council of Ministers to aid and advise the Lt. Governor were also to be present, and only in certain cases in relation to subjects of land, police, and public order, the Lt. Governor was to not bound by the aid and advise of the Council of Ministers. Article 239AA(4) provided a mechanism for referring the matter to the President in case of a difference of opinion between the Lt. Governor and the Council of Ministers.

Current standoff between AAP-led Delhi government and Centre

In a dispute involving the interpretation of the present scheme of governance, the Supreme Court of India has completed hearing a constitution bench challenge in this regard in December 2017. The crux of this challenge related to the extent of powers of the Lt. Governor and the elected Chief Minister of Delhi under Article 239AA. The case raised pertinent points regarding the federal structure followed in the Constitution. The Delhi High Court in a judgment delivered on August 4, 2016 held that all proposal for legislation for policy changes of Delhi government must have the prior approval of the Lt. Governor.

There are two things that make Delhi distinct from a state. One, the excluded items under State list, i.e. item 1,2, and 18, on which the Delhi Legislative Assembly cannot make laws, are not restricted in states. Two, Parliament has concurrent legislative power over other items in the State list for the territory of Delhi as well.

Breaking down the present crisis

The case of Delhi government is that this interpretation of the HC reduces Delhi to a department of the Union of India, effectively the ruling party at the Centre. Responsible government, they argue cannot exist without policy making and legislative power, and the power to implement decisions being given to the elected government. They argue that only when there is a difference of opinion in the subject matters of land, police, and public order, can the LG forward the matter to the President for his decision in the matter.

If the purview of such difference of opinion is expanded to all matters, the effective power for implementing policy decisions would be with the Centre and not the State. This would make the vote of the citizen for an elected government meaningless.  One of the most important issues raised by Delhi government relates to the extent of the powers of Delhi Government to make postings of civil servants and take disciplinary action against them under CCSR.

The Union contends that services [List II, Entry 41] are excluded from legislation of state government, while it is the case of Government of NCT of Delhi that services cannot be excluded from the legislative and executive of Delhi. Further, even in respect of All India Services officers, while it is the responsibility of cadre authority to allocate officer to NCT Delhi, once an officer has been allocated, posting to a specific department and disciplinary control during period of allocation will be with the GNCT of Delhi.

In the constitution bench challenge before the Supreme Court, the Union of India, representing the LG, had argued that as Delhi is a national capital, it is incumbent for public order and in national interest that the central government have full control over giving a green signal to any policy implemented in the territory. This ignored the special structure established for Delhi in the Constitution of India, and equated it at par with the scheme of governance of other union territories. In effect, this negated the history of struggle of citizens of Delhi in increasing their autonomy in a democratic set up.

the sit-in protest at LG's office

This is indeed the root of the problem in Delhi during the current sit-in by ministries of the Delhi Government at the residence of the LG. Governments are notorious for enforcing the misconduct rules when civil servants go on strike. In this case, they seem to be encouraged to misbehave and disobey orders by Delhi government. In statements made to the media, they they seem to be admitting that they are not attending meetings with ministries ostensibly because they fear reprisals from the ministers given that their Chief Secretary was assaulted. The case filed by the Chief Secretary is, however, pending in court and cannot be the justification for a pen down strike by civil servants.

Although it is more than a year since the appeal was filed and more than six months since the arguments concluded, judgment has not been delivered as yet. Perhaps this situation could have been avoided if the Supreme Court had clarified the limits of the persons of the LG in an elected government.

 Capital concerns

It is interesting to note that there is currently no law in the country that restricts the moving of capital from one city to another, or fixes it in Delhi. There have been demands by certain sections of the society to move the capital to Nagpur. In such a situation, the question which calls for our reflection is that will there be a change in the federal structure where the city will be made into a Union Territory with special structure and an administrator like the Lieutenant Governor? More so, the question that also begs our consideration is what would happen to the powers of the Lt. Governor in Delhi?

Moreover, with respect to the recent events of the Chief Minister, Arvind Kejriwal, and other Ministers from his Government sitting in protest in the LG's office, it is interesting that the allocation of civil services officers was another point of contention in the constitution bench hearing of the Supreme Court. It was argued that the functioning of such services should be allocated to the elected government because even if the Centre appoints these officers, the subsequent allocation and supervision is undertaken by the Government of NCT of Delhi.

[Disclaimer: Nehmat Kaur assisted Senior Advocate Indira Jaising in the Constitution Bench challenge in the case of Government. Of NCT Delhi v Union of India.]