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An unelected government in Delhi?
The TLDR: The union government is gearing up to introduce a new bill that will dramatically reduce any elected Delhi government’s ability to govern independently. It also points to the way in which a ‘union territory’ designation is used to tightly control pesky parties and parts of the country. Yes, it sounds a little boring but this bill will have huge ramifications for how the nation’s capital functions in the future.
Ok, fine, tell me about the law
It basically amends a bunch of sections of a law called Government of National Capital Territory of Delhi Act—which was passed in 1991. This is also when the city was given a special constitutional category of its own: Article 239 AA, and renamed as the National Capital Territory (NCT) of Delhi.
A mini TLDR: in case you don’t want to wade into the legalese. To sum up: The Delhi government is not one lawfully elected by the people—but the Lieutenant Governor picked by the Centre. The LG has the sole discretion to decide areas in which the elected legislative assembly has power to independently make laws or decisions—and his opinion must be sought on all other matters. He can okay a decision or give it a thumbs down if he decides at any point that an action or bill does not fall within such an area.
Here are the key changes:
One: The word “government” in any law passed by the legislative assembly will specifically mean the Lieutenant Governor—who is nominated by the Centre, and appointed by the President.
Two: Now, according to section 24 of the Act, any bill passed by the legislative assembly has to be presented to the LG who has to either approve it, withhold his approval or refer it to the President to settle the matter. The amendment now adds a new wrinkle, saying that the LG may simply refuse to okay a bill—or even refer it to the President—if he thinks it falls outside the purview of the Delhi government. That raises the big question: Who decides what areas fall within the realm of the local government? See answer below.
Three: One of the amendments requires the Delhi government to “obtain” the “opinion” of the LG before it takes “executive action”—“on all such matters as may be specified… by the Lieutenant Governor.” Did you see how that works? The Delhi government has to get his prior assent on all matters that require his assent—which in turn is decided by the LG, as well. Wah!
Four: And just in case there is any wiggle room, the bill also insists that the Legislative Assembly cannot make any rule that allows itself to “consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions.”
The AAP government’s take: is that the bill represents “a murder of constitutional democracy”—which may well be true from the perspective of Delhi voters who elected them.
Is this legal?
Ok, to get to that, we have to understand how union territories are supposed to work. And whether Delhi has been afforded a special status.
Why do we have union territories? To be crystal clear, UTs were created precisely to ensure certain parts of the country will be directly ruled by the Centre.
- Back in the day when we attained independence, the sole territory of Andaman and Nicobar Islands was ruled by a Lieutenant Governor appointed by the Central Government.
- This power structure became the basis for six Union Territories that were deemed “economically unbalanced, financially weak and administratively and politically unstable”—and hence needed the firm hand of central rule.
- And the balance of power was firmly established: “the Central Government has not only full executive authority but also regulation-making power.”
- Hence, a UT is primarily administered by the Lieutenant Governor who makes “regulations for the peace, progress and good government”—even if there is an elected government in power.
- Of the original six, three—Manipur, Tripura and Himachal Pradesh—have become states. Today, there are 8 UTs: Puducherry, Daman & Diu, Andaman & Nicobar Islands, Chandigarh, Delhi, Dadra & Nagar Haveli. This also includes one state—Jammu & Kashmir—which was recently demoted from a state to two UTs, Jammu & Kashmir and Ladakh.
Is this true of Delhi? Ah, here’s where things get tricky. Article 239 itself follows the post-independence logic of putting all UTs under the control of the Centre. But the question is does that 1991 clause—Article 239 AA—confer a special status on the nation’s capital or not? And the Aam Aadmi Party has put that question front-and-centre since its election in 2015:
- In 2015, AAP moved the Delhi High Court, claiming it has the right to investigate central government employees in the city. It argued that the LG is legally bound to follow the advice of the elected government in areas where it has powers.
- The High Court rejected the argument—which then triggered a Supreme Court appeal. The Court in turn appointed a five-judge constitutional bench to decide the issue.
- The bench ruled “the status of NCT of Delhi is sui generis, a class apart.” It also said: “[T]he status of the lieutenant governor of Delhi is not that of a governor of a state, rather he remains an administrator, in a limited sense, working with the designation of lieutenant governor.”
- Hence, s/he has to act on the aid and advice of the council of ministers on all matters except land, public order and police. And the government need not seek his assent “on every issue of day-to-day governance, but need only inform him.”
- And while the LG can refer any matter to the President if s/he disagrees with the government, this power must be exercised only in “exceptional circumstances.”
Hello, legal football: The above verdict sounded clear enough, but then things got messy when a two-person bench was appointed to decide exactly what areas fall into the Delhi government’s remit. They couldn’t agree on certain points, and a three-person bench was appointed instead. And that has only passed three single-line orders in two years—each of them postponing the hearings.
So now what?
AAP is already threatening to take the matter to court. But we will leave the final word to a Supreme Court lawyer, who told The Wire:
“While I do see constitutional challenges coming up, they would take their own time to resolve. In principle, even after the Supreme Court judgment there is nothing which prevents the government from changing the law… But, to use legislative power like this, just because you can, also raises questions of constitutional governance and constitutional morality. A city of two crore people can’t necessarily be deprived of statehood or be given a rather watered down version of statehood.”
The bottomline: The union government has to embrace the idea that at least some parts of the country are ruled by other parties. Taken together with its affection for ‘resort politics’—i.e. toppling state governments via defecting MLAs—the Delhi bill appears to be just one more move to overpower any kind of opposition.
That said, this is what Arvind Kejriwal tweeted when the same government stripped Jammu & Kashmir of all autonomy, and demoted it to a UT: “We support the govt on its decisions on J & K. We hope this will bring peace and development in the state.”
Reading list
The Wire has a balanced overview of the new bill, and possible constitutional challenges. The Print has best reporting on the Supreme Court tussle over Delhi’s special status. Indian Express has the long history of Arvind Kejriwal’s battles with the Centre—both under Congress and the BJP. Quint explains the demand for statehood for Delhi. If you want to revisit what it means to be a UT, The Hindu has a good explainer on its history. Also: The Diplomat explains exactly what happened to Kashmir when it became one.