Delhi Municipal Corporation (Amendment) Bill, 2022: an attempt to disrupt cooperative federalism?

The Bill will transfer all the powers relating to the Municipal Corporation(s) of Delhi, which were delegated to the Government of the National Capital Territory of Delhi in 2011, to the union government.

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THE Lok Sabha on March 30 passed the Delhi Municipal Corporation (Amendment) Bill, 2022, which will unify the South Delhi Municipal Corporation, the North Delhi Municipal Corporation and the East Delhi Municipal Corporation into the Municipal Corporation of Delhi [MCD].

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

What is the Bill about?

The Bill seeks to establish a robust mechanism for synergised, strategic planning and optimal utilisation of resources, and bring greater transparency and efficiency into the delivery of civic services. It limits the total number of the seats in the new Corporation to 250, whereas currently the three corporations have a total of 272 seats.

According to the Bill's statement of objects and reasons [SOR], while the MCD was trifurcated "in the interest of providing more efficient civic services to the public", it has resulted in uneven territorial divisions and failed to achieve the corporations' revenue generating potential. The gap in the availability of the resources and uncertainty over fund allocation has only widened in the last ten years, leaving the corporations "incapacitated to make timely payment of salaries and retirement benefits to their employees." This, as per the SOR, has led to "frequent strikes by the municipal employees which have not only affected civic services, but also created concomitant problems of cleanliness and sanitization".

The trifurcation of the MCD was originally done by amending the Delhi Municipal Corporation Act, 1957 in 2011 by the Delhi Legislative Assembly. The amendment was based on the 1989 report by the Committee on Reorganisation of Delhi Set-Up, chaired by S. Balakrishnan and formed in 1987 by the Union Home Affairs Ministry to provide, for the first time, a systematic and comprehensive understanding of the different issues connected with the administration of Delhi, as well as on the recommendation of the Virendra Prakash Committee formed by the Government of the National Capital Territory of Delhi [GNCTD] in 2001, to split up the singular MCD into smaller committees for more efficient civic services. This was repeated by a Group of Ministers of the GNCTD in 2011.

What is the controversy over the Bill?

The Bill was passed through the Lok Sabha only weeks before the elections for the three municipal corporations in Delhi were scheduled to be held later this month. They have now been postponed indefinitely due to the potential redrawing of municipality wards if the bill is enacted as law.

A conjoint reading of Articles 243P, 243R and 246, along with List II, Entry 5 of the Seventh Schedule of the Constitution indicate that only the state government is empowered to deal with matters of local governance. However, the Bill gives unified control of the unified MCD to the union government, by replacing 'Government' under Section 3 of the Delhi Municipal Corporation Act with 'Central Government'. This is in stark contrast with the Balakrishnan Committee report that specifically stated that the GNCTD cannot be deprived of the matters concerning local authorities, municipal corporation and public utility services (pg. 82-83).

Why is the Delhi Government aggrieved with this?

The Bill will transfer all the powers relating to the MCDs that were delegated to the GNCTD in 2011 to the union government. The post of Director for Local Bodies responsible for assisting and coordinating with the GNCTD has been removed. A 'Special Officer' will now be appointed by the union government to discharge the functions of the Corporation until its first meeting.

The power to decide delimitation of ward areas has also been transferred from the GNCTD to the union government.

Also read: Disempowering Delhi's Urban Poor by Empowering the LG

What are its implications?

Article 239AA was added to the Constitution by the Constitution (Sixty-ninth Amendment) Act, 1991. It established a democratic set up and representative form of government in the NCT of Delhi through the Government of National Capital Territory of Delhi Act, 1991.

According to the 1991 Act, the concept of 'aid and advice' is only applicable in matters where the GNCTD has the power to make laws. For matters outside its purview, the Lieutenant Government [LG] has discretionary powers. But, where a conflict of opinion arises, the LG must refer the matter to the President for its final decision.

This has been reiterated in the Supreme Court's judgment in NCT of Delhi vs. Union of India (2018) that emphasised maintaining a purposive approach towards Article 239AA to bring out the truest sense of principle of democracy and federalism.

Also read: GNCT vs Union of India : an analysis

The recent attempts by the union government, first through the Government of National Capital of Delhi (Amendment) Act, 2021, that undoes the very purpose of Article 239AA, which is to eradicate the hierarchical structure that functionally placed the LG in a superior position to the GNCTD's Council of Ministers, and now the MCD Bill, which leaves no space for the participation of the GNCTD, are clearly meant to subvert the authority of the GNCTD. This may be seen as a betrayal of democratic principles.

What lies ahead?

The undoing of the 2011 trifurcation hurts the very essence of the 2011 amendment since the GNCTD has not been given any power to assist in the smooth functioning of the Corporation. Claims of accountability are not maintainable as the Bill reflect a strong centralising tendency, contrary to the principle of cooperative federalism. In S.R Bommai vs. Union of India (1994), the Supreme Court held that federalism forms part of the basic structure of the Constitution, observing: "The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers."

Also read: What is the Constitutionality of the Government of National Capital Territory of Delhi (Amendment) Act, 2021?

The union government's brazen attempt to defer the MCD elections by passing the bill via voice voting and no scrutiny by any Parliamentary Committee gives the impression of an attempt to avoid electoral defeat by the ruling party. The snatching of powers of the GNCTD, despite the constitutional mandate, bodes an uncertain future for local government bodies in Delhi.