Essay : No Statehood for Delhi, but Can the LG be the Decision Maker

In the recent judgement of Supreme Court in July 2018, it has been held that Delhi cannot be given statehood. The decision of Supreme Court came after long tussle between the Chief Minister of Delhi, Arvind Kejriwal and Lieutenant Governor of Delhi over the control of power.

The Constitutional arrangement of Delhi is different from other states and Union Territories. Delhi is a Union Territory having its own Legislative Assembly and has an elected Chief Minister who is answerable to the people of Delhi. On the other hand, the Lieutenant Governor is answerable to the President that means to the Union Government.

To understand the situation of Delhi, we have to go in the past. In 1956 Delhi got the status of Union Territory and was headed by Lieutenant Governor who was answerable to President of India and acted as per the advice of Central Government. In 1966, Delhi Metropolitan Council came into existence through the Delhi Administrative Act. This Council consisted of 61 members in which 56 were elected and rest 5 were nominated. The Council had only advisory role and had no legislative powers. This Council was headed by Lieutenant Governor.

Special Status to Delhi

Finally, in 1991 the Delhi Metropolitan Council was replaced by full-fledged Legislative Assembly by 69th Constitutional Amendment Act. The Act provided special provision for Delhi and thus the National Capital Territory of Delhi came into existence. Although the Advisory Council was replaced by Legislative Assembly but the role of the Lieutenant Governor still remains unchanged. The elected Chief Minister needs prior approval of the LG on any bill before he presents it to the Legislative Assembly and also needs his approval on other administrative functions of the bureaucracy.

In full-fledged states, Governors are bound to act as per the advice of the Council of Ministers and the state legislative assembly has full authority on the Constitution. But, as we know Delhi has special provision, Lieutenant Governor is not bound to act on the advice of the Council of Ministers. On the other hand, Lieutenant Governor acts on the wish of the Union Government because he is answerable to the President who acts only on the advice of the Union Council of Ministers.

The problem of giving full statehood to Delhi is beyond the clash between LG and the Aam Admi Party government. Delhi is also the capital of India; all the offices of Union Government and many other offices of National and International importance like Rashtrapati Bhawan, Parliament, Ministry of Defence, Ministry of External Affairs and Ministry of Home Affairs are situated in the national capital. These are some of the important offices of Union Government. Along with these offices, there are also embassies of foreign nations and offices of international organisations situated in Delhi. Another problem is with regard to the revenue of Delhi government. If the Delhi police come under the control of Delhi government, then how will the Delhi government pay for the salaries and provide other equipments and infrastructure to the police force? Delhi has a vast population having basic concerns about clean water for drinking, health facilities to old age people, education for children and other serious issues.

The Story so far….

The demand of full statehood for Delhi was also raised from time to time. In the previous State Assembly election, the demand was mentioned in their election manifesto. Bharatiya Janta Party supported the demand for full statehood for Delhi till the 2014 elections. Indian National Congress also raised voice for full statehood till 2015 election. But, this demand was strongly raised by Bharatiya Janta Party during the reign of the UPA government. After state election held in 2015, the Aam Admi Party formed the government with huge majority and Arvind Kejriwal became the CM of National Capital Territory. The demand for full statehood was nullified after the 2015 election both by the BJP and Congress; but AAP continued raising voice for the demand of full statehood for Delhi.

In 1990, Union Home Minister, Mufti Mohammad Sayeed introduced the 72nd Constitutional Amendment Bill in the Parliament but the bill lapsed. However in 1998, it was made mandatory for the Lieutenant Governor to consult the Council of Ministers on the reserved subjects as well i.e. police, public order and land. This provision was made by issuing of the notification by the Union Government. At that time, the Union and Delhi were being ruled by the government of the same party. In 2015, another notification was issued which withdrew the provision of 1998 and made non-mandatory for Lieutenant Governor to consult with the Council of Ministers on matters related to police, public order and land which fall under the reserved subjects. This new notification of Union Home Ministry became the reason of clash between the Delhi government and LG, where the Delhi government dragged the LG and Union Government to the court.

The Chief Minister of Delhi challenged this notification in the Delhi High court in August 2016. The bench held by G. Rohini and Justice Jayant Nath held their judgement in favour of Union Government notification and also stated that LG is the highest authority in Delhi and is not bound to act on the advice of the Council of Ministers. The Court further stated that the concurrence of LG is also required for Delhi government to perform its administrative and legislative duties.

In December 2017, the judgement was challenged by the CM of Delhi in the Supreme Court. In July 2018, a five judge bench of Supreme Court held that the LG of Delhi is bound by the “aid and advice” of the popularly elected government of Delhi and there is no space for anarchy in a democracy. Both have to work harmoniously with each other in favour of people of Delhi. The court further commented “In this context, even in case of difference of opinion, the LG and NCT government should act with constitutional morality and trust for each other. The LG cannot act without applying his mind and refer everything to the President”. This is the first time the Supreme Court lays down clear guidelines for the LG’s and NCT government’s conduct. It said that except for three issues — public order, police, and land, the NCT government has the authority to formulate the laws and also govern on other issues. All the actions of Council of Ministers must be communicated with LG, but it did not mean his concurrence was required on every issue.

Way Forward

The ruling of Supreme Court clearly states that the tussle between AAP government of NCT and LG appointed by BJP led Union Government affects the people of Delhi negatively. A lot of important administrative decisions are pending and also there is question of validation on bills passed by the Legislative Assembly of Delhi. Already a lot of valuable time that could have been rather diverted to significant work, is wasted in the clash of interest between two parties. The most important thing for both LG and NCT government is to work with harmony in the interest of the people by coming through a consensus and take a middle soft path, so that the Democracy can win through in the end.