The union government just passed a bill that will give it complete control over the administration of the capital. It has rendered the AAP government—or any future government of Delhi entirely toothless.
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First: Delhi’s special status
As you know, the capital is one of eight union territories—which were created precisely to ensure certain parts of the country will be directly ruled by the Centre. They 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.
The big Delhi exception: But in 1991, the Congress government introduced a constitutional amendment—Article 239AA—to make Delhi the only union territory with powers that resemble a full-fledged state. It granted the capital’s elected government authority over all matters except public order, police and land. The Article directed the Lieutenant Governor to act on the advice of a Council of Ministers—which is headed by the Chief Minister. The elected government was required to consult the LG on a number of matters—mostly involving either law & order or other states etc.
AAP vs BJP wars: All was hunky-dory until the Aam Aadmi Party came to power in 2015. Ever since, the union and Delhi government have been at war—each trying to whittle down the powers of the other. And various pleas, appeals, petitions have been filed—and Supreme Court rulings have been passed. But to very little effect.
One example: We’re not going to wade into the messy legal timeline, but this is what the Supreme Court said back in 2018:
In 2018, a constitutional bench of apex court in the Government of NCT of Delhi v Union of India had held that the chief minister is the executive head of Delhi. The L-G was bound by the aid and advice of the elected government or the council of ministers, it said.
Sounds pretty straightforward, right? Not even close.
How we got here: The justices then directed a two-judge bench to figure out who has power over “administrative services”—i.e the appointment and transfers of bureaucrats—who are the true mandarins of power. Sadly, the two judges couldn’t agree on a number of issues—so they kicked the matter to a three-judge bench. Then the Centre asked for a five-judge constitutional bench—which is right back where we started.
The Supreme Court ruling
In May, the Court once again delivered a ruling affirming the powers of the Delhi government over the capital’s babus:
[L]egislative and executive power over such services such as Indian administrative services, or joint card of services, which are relevant for the implementation of policies and vision of NCT of Delhi in terms of day to day administration of the region, shall live with Delhi.
Far more notably: The Court affirmed Delhi’s special status—and said it could not be treated like any other UT since it has its own elected government. And it affirmed the previous Supreme Court ruling establishing a “triple chain of command”:
The court had held that the civil services were accountable to the Ministers of the elected government, under whom they function. The Ministers were in turn accountable to the legislature, and the legislature ultimately to the people of Delhi. The chain of command was forged by the Supreme Court to ensure democratic accountability.
Ergo, the Court’s rationale for affirming the powers of the Delhi government was as follows:
If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted.
Say hello to the ordinance
First, a definition: When the Parliament is not in session, the union government has the power to issue a law—called an ordinance—with the approval of the President. But the government must table a bill at the next parliamentary session—to ratify this ordinance into law.
Farewell, special status: Unhappy with the Supreme Court ruling, the union government issued an ordinance within eight days—effectively overturning it. And this week, it pushed a bill through both houses of Parliament—and made it the law of the land. In effect, the law turns Delhi into any other Union Territory—under direct control of the Centre.
Say hello to the NCCSA: The law mandates the creation of something called the National Capital Civil Services Authority. This is a very long and convoluted name for a three-person committee—made up of the Chief Minister, the Chief Secretary and Principal Home Secretary. The latter two are IAS officers—and appointed by the Centre. Here’s what it has the power to do:
The NCCSA exercises authority over civil service officers working in all Delhi government departments except those in public order, police and land. It would decide transfers, postings, prosecution sanctions, disciplinary proceedings, vigilance issues, etc, of civil service officers deputed to Delhi government departments by majority of votes of the members present and voting. The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.
The NCCSA makes decisions based on democratic principles—i.e the majority wins:
[T]he Authority shall make all decisions on the basis of majority of votes of the members present and voting. This means that since this is a three-member authority, the two senior bureaucrats could overrule the decision of the Delhi chief minister.
In essence, the Chief Minister has lost control over the civil servants who run the city—and therefore, the city itself:
The real control is exercised through the bureaucracy as the mandatory powers rest with the bureaucracy. The chief minister cannot sign an order of transfer or posting himself or even the allotment of any project or cannot proclaim Section 144 for instance. All this is done by bureaucrats as statutory authority. If this control is not with the CM then it is not a state. You have converted the elected Delhi government into a supernumerary.
The all-powerful LG: As per Article 239AA, the Lieutenant Governor is supposed to act on the advice of the Council of Ministers. But the law flips this around. The NCCSA has to send its recommendations to the LG—who can return it for reconsideration if they disagree. However, in case of a stalemate, “the decision of the Lieutenant Governor shall be final.”
Also this: The LG has the power to decide when to call the legislative assembly in session—and overrule the CM if they want.
The Centre’s rationale: for throwing the Supreme Court ruling in the dustbin is to “ensure corruption-free, pro-people governance in Delhi.”
Back to the Supreme Court: As expected, AAP has already challenged the ordinance—which is now law. The matter has been referred to a five-judge bench. Round and round we go again. Now, the union government can pass a law that is contrary to a Supreme Court ruling. However, it must take away the “basis” of that judgement—so it no longer applies. In this case, that would mean passing a constitutional amendment—changing the language in Article 239AA.
Point to note: No government can pass laws to simply overturn Supreme Court judgements. That would be a breach of the separation of powers.
The bottomline: It is a bad idea to let unelected bureaucrats govern Delhi—as opposed to elected representatives who will at least have to face voters in the next election. And babus left without any accountability tend to run amok, as the Supreme Court noted in its May ruling:
If the officers stop reporting to the ministers or do not abide by the directions, the entire principle of collective responsibilities is affected. A democratically elected government can perform only when there is an awareness on the part of officers of the consequences which may ensue, if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.
The Hindu’s explainer on the ordinance works almost as well for the new law—and PRS Legislative Research is the clearest on its details. Bar and Bench has a good explainer on Article 239AA. The Print offers more context on the battle between BJP and AAP. One of the best analyses of the ruling is over at LiveLaw—but is sadly behind a paywall. Gautam Bhatia offers a nerdier version of the same. Or you can check out a similar argument at The Wire.