AAP-LG Face-OFF:Pushing System to the Brink
Organiser   29-Jun-2018

None of the former Delhi chief ministers made hue and cry over the Constitutional set-up that elected them the way Kejriwal has been doing repeatedly



The recent strike by Delhi’s Chief Minister Arvind Kejriwal and a few of his Ministers upset many analysts and commentators, who argued that like any other State, the elected government could not be denied its mandate by the Lieutenant Governor (LG), an appointee of the President of India. Chief Ministers of four States expressed their support to him. Kejriwal stated that Delhi should become a full-fledged State, and has often said that it is a half-State. His predecessor, Sheila Dikshit, at the height of the Nirbhaya agitation had explained that she as the Chief Minister could not be held responsible since Delhi Police did not function under her and that Delhi was not like other States in this respect. In fact, legally speaking these are the wrong questions to ask. The Constitution of India recognises only two categories of geographical entities who have powers laid down in the Constitution itself—States and Union Territories. (The provision for urban and rural local bodies is an enabling provision, not a mandatory one). Delhi is a Union Territory (UT), albeit with an elected legislature.

The UTs without legislature have limited financial powers, lack their own Public Accounts, do not have their own budgets and therefore no powers of taxation. Instead, their revenues and expenditures form part of the Union budget, under the budget-head of the Home Ministry. The Union Territories with legislatures have unlimited financial powers as long as it generates its own resources. Because of this caveat, the budget presented by the Government of the NCT of Delhi first needs the prior approval of the President, before being presented to the Delhi legislative assembly. Going further, while the UTs without legislature have a single source of power, the LG who is the Administrator, the elected government of Delhi has no control over police, law & order, land etc. and can see their decisions over-ruled by the combination of the LG and home ministry. It is instructive to look at how the system has functioned in the recent past.
The present Constitutional status of Delhi owes its origin to the Constitution 69th Amendment Act that inserted special provisions under Article 239 providing for the present new administrative set-up. Subsequently, Parliament also enacted the Government of the National Territory Act, 1991. Incidentally, the very title of Article 239 (Administration of Union Territories) establishes Delhi’s Constitutional position unambiguously.
After these legal changes, when the first elections to Delhi’s legislative assembly were held in 1993, the BJP swept to power. Madan Lal Khurana, the elected leader of the BJP legislative party staked his claim but unlike a State, Delhi’s LG not having the powers of a Governor in this regard, it was the President who appointed ML Khurana as the Chief Minister on the recommendation of the LG. An interesting fact is that other than for a short period in 1998 when there was a BJP Government in Delhi and a BJP-led NDA Government at the Centre, for the rest of the 1993–2004 period, Delhi’s government was led by a party opposed the party in power at the Centre. Yet at no stage did different Chief Ministers, ML Khurana, Sahib Singh Verma or Sheila Dikshit, object to the system of functioning of Centre-Delhi relations, though they were frequently over-ruled by the LG, since they recognised the legal limitations. Sheila Dikshit, in fact, expressed frustrations that as the Chief Minister she did not have adequate powers since Delhi was not, to quote her, ‘a full-fledged State.’
There are two interesting, and relevant, aspects of this statement of Sheila Dikshit. One, she made it when her own party was in power and the Centre, not when she had to deal with Vajpayee’s government. Two, her objection was to the structure per se and not blaming the LG or government of India for the limitations she was placed under. No CM claimed that they had powers to introduce legislative bills without prior approval of the President, to keep the LG out of the loop in decision-making, including statutory appointments or the posting of senior officers and the like. They may have fretted about it but all three played by the book. The problem, if any, is the Constitutional structure as established by the 69th Constitutional Amendment and the Government of NCT Act. This would lead to the next question—is Statehood for Delhi politically feasible.
The demand for statehood for Delhi seems unlikely to be politically acceptable. Successive union governments have considered statehood but none has accepted the demand; in fact, Delhi was Part C State in the early 1950’s with an elected Chief Minister, Chowdhry Brahm Prakash. Subsequently, this category was abolished and Delhi became a Union Territory. Notably, Chowdhry Brahm Prakash had considerable run-ins with the Centre, though he was a Congressman. Later Delhi had an elected Metropolitan Council, with a Chief Executive Councillor and five Executive Councillors, a miniature version of what later became the Government of NCT of Delhi. When the Narasimha Rao Government moved the bill for an elected Assembly in Delhi, it very consciously kept sensitive subjects like police, law & order and land under the government of India, signalling the limitations of administrative autonomy that the nation"s capital could enjoy. In fact, since Delhi became a Chief Commissioner’s Province in 1912, being carved out of Punjab and United Provinces (Shahdara), these subjects have been exercised by Government of India; clearly even the British were not prepared to give their own man complete autonomy, a feature we see in most National capital cities across the world.
The problem of Constitutional status and administrative arrangements of national capital cities is not unique to India. Washington DC became a self-governing city only in 1973, but its only representative in the US Congress is a non-voting member of the House of Representatives, with no representative in the Senate. In fact, its residents got the right to vote in US Presidential elections only in 1961. Its budget is approved by Congress and any law it passes can be over-ruled by Congress. On the other hand, the police work under the city’s mayor, like all other cities in the USA. Delhi’s elected government is far more favourably placed.
Democratic governments, even federal ones like the USA and Australia, have shown reluctance to extend the full scope of democratic governance to their capital cities. As stated above, even the British who faced no potential threat from the elected local governments did not vest the Chief Commissioner of Delhi with powers over land and police. Accepting this, elected governments have generally accepted the situation, tried to bargain over greater resource flows and got on with the job of functioning within the ambit of law, however defective they think it is. To act otherwise is to betray the mandate given to them, particularly since the playing field is as it was before the elections.

(The writer is Director General of Nehru Memorial Museum & Library, Delhi)