A courtier once said about Charles II, “We have a pretty witty king, Whose word no man relies on. He never said a foolish thing, And never did a wise one.” Charles supposedly replied, “The wise words are my own, the deeds are my ministers.” Thus was seeded the system of the cabinet form of government, which eventually flowered in England and left its imprimatur over constitutional structures throughout the world. India has no monarchs but a President and Governors, in whose name, the government is run. They can do almost nothing by themselves, without the aid and advice of their cabinet of Ministers. However, the Lieutenant Governor (LG) of Delhi, will likely be an exception soon.
Parliamentary democracy, with a cabinet form of government, is part of the basic structure of the Indian Constitution. Its first article reads, “India that is Bharat, shall be a Union of States.” When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States, with the last two being administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
Delhi as the National Capital, belonged to the nation as a whole. 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. 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.Also read: Lok Sabha passes Bill that seeks to clarify that 'Govt.' in Delhi means 'L-G'
Hence, Delhi was initially made a Part C State. Its population then was around 14 lakh people. In 1951, a Legislative Assembly was created with an elected Chief Minister. Chaudhary Brahm Prakash became the first Chief Minister in 1952. However, a prolonged stand-off with the Chief Commissioner, and later the Union Home Minister, Govind Ballabh Pant, over issues of jurisdictions and functional autonomy, eventually led to his resignation, in 1955. 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. The Legislative Assembly of Delhi and the Council stood abolished, despite loud protests in Parliament. 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. This structure continued for many years, with repeated political demands for full statehood to be granted to Delhi.
In 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi. In 1989, the 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; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. 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.
Politics and questions
Between 1991 to date, there have been various instances when the Delhi Assembly has been won by a party other than the ruling party at the Centre. In an era of mixed but slim mandates, the Delhi government and the Union Government have differed, but more often than not found a modus vivendi . But the Lok Sabha elections of 2014 and 2019 and the Delhi Assembly elections of 2015 and 2020, have resulted in huge mandates to personality-led governments, from different parties that are seemingly locked in mortal combat with each other.
The ensuing fights lead to constitutional questions on Delhi’s peculiar government structure being litigated up to the Supreme Court. A Bench in 2018 ruled that “...Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision”. The Court further ruled that “... The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain.”
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.
It is against this convoluted historical and legal background that we must assess the Central government’s justification that “In order to give effect to the interpretation made by Hon’ble Supreme Court in the aforesaid judgments, a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia , to clarify the expression ‘Government’, ….consistent with the status of Delhi as a Union territory to address the ambiguities in the interpretation of the legislative provisions.”
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. Simply put, the elected government in Delhi can do nothing, if the LG does not permit them to so do. It provides that, “The expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.” It further provides that “...before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, ...under any law in force in the Capital, the opinion of Lieutenant Governor ...shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.”
If the Bill is passed by both Houses of Parliament, as it seems so, it will be a case of the unelected tail wagging the elected dog. The population of Delhi which counts among the highest in the world, will have an unrepresentative administration. It will be ruled by an appointed LG, who can only be changed if the rest of the country, decides to change the Central government. There can be no recourse to the ballot box to hold to account an unelected, centrally appointed government functionary. 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. That apart, when we take a broader view, we are also alive to the consequence of such an interpretation. If the expressions in case of difference and on any matter are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set-up, although different from States as understood under the Constitution, will lose its purpose in simple semantics.”
Will Parliamentarians heed the Court’s caution, or like Charles II, will they never say “a foolish thing and never do a wise one”?
Sanjay Hegde is a senior advocate designated by the Supreme Court of India