Delhi Full Statehood Issue
An overview of governance in Delhi
Note4Students
From UPSC perspective, the following things are important :
Mains level: Tussle between the Lt. Governor and elected government of Delhi;
Why in the News?
The Supreme Court ruled that Delhi’s LG can independently nominate 10 aldermen to the MCD which escalates tensions between the Union, Delhi, and local governments.
How did the Delhi government evolve?
|
Why is there constant tension and friction between the Union government and the Delhi government?
- Legal Disputes: Legal battles have escalated tensions, particularly following Supreme Court judgments that have altered the balance of power between the elected Delhi government and the Lieutenant Governor (LG). For instance, recent rulings have clarified the LG’s powers, allowing for unilateral actions that bypass the council of ministers.
- Control Over Key Areas: The Union government retains control over critical areas such as police, public order, and land, which limits the Delhi government’s autonomy.
- Administrative Confusion: The presence of multiple layers of governance, including the MCD and other local bodies, complicates accountability and governance, leading to blame-shifting during crises, such as the recent incidents of electrocution and flooding.
- Budgetary Conflict: The Delhi State Government has accused the Central Government of underfunding the MCD, leading to poor civic services, while the Central Government has argued that the State Government is not providing adequate support.
- Division and Unification of MCD: In 2012, the MCD was trifurcated into three separate entities by the Congress-led state government, a move seen as an attempt to decentralize power. However, in 2022, the BJP-led Central Government passed a law to reunify the MCD, citing administrative efficiency, but the move was perceived by the Delhi State Government as an effort to centralize control.
What did the 1989 Balakrishnan committee recommend?
- On Union Territory Status: The Balakrishnan Committee recommended that Delhi must remain a Union Territory rather than achieving full statehood.
- On Governance Structure: The committee proposed a governance model that included an Administrator exercising powers based on the advice of the Council of Ministers, ensuring a balance of power while maintaining central oversight.
- On Representation and Accountability: The committee emphasized the need for a more effective representative democratic system to safeguard the rights of Delhi’s growing population.
How has the Municipal Corporation of Delhi been involved in the power tussle?
- Multiple Authorities: The MCD operates under the Union government’s control, adding complexity to the governance structure in Delhi. For example in public services and urban management.
- Electoral Conflicts: The MCD’s elected representatives have often been caught in the crossfire of political disputes between the Union and Delhi governments, leading to inefficiencies and a lack of coherent governance. The recent tragedies in the city have highlighted the consequences of this blame-shifting.
Way Forward:
- Revisiting Governance Structure: A constitutional amendment could be considered to delineate the powers of the central government and the Delhi government more clearly. For instance, the area of New Delhi (50-100 square kilometres) could be under central control, while the rest could be governed by the Delhi Assembly.
- Implementation of triple chain accountability: Implementing the spirit of the Supreme Court’s 2023 judgment, which emphasized a triple chain of accountability, could help restore balance and ensure that all layers of government are accountable to the people.
- Promoting Consensus-Based Governance: Encouraging dialogue and consensus between the different layers of government could help mitigate conflicts and foster a more cooperative governance environment.
Mains PYQ:
Q Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine.(2018)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Explained: Delhi Services Bill, 2023
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Delhi Services Bill
Mains level: Read the attached story
Central Idea
- The Rajya Sabha passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2023 four days after the Lok Sabha cleared the Bill.
- It will promulgate into law once signed by the President of India.
Delhi Services Bill, 2023: A Backgrounder
- In May 2023, the Supreme Court ruled in favor of the Delhi government, granting it control over most services in the capital city, except for public order, land, and police cases.
- However, the Centre introduced an ordinance on May 19 to override the top court’s order, giving more authority to the Lieutenant Governor (LG) in matters of appointments and transfers of bureaucrats.
Key Features of the Bill
- National Capital Civil Services Authority: The bill establishes the National Capital Civil Services Authority to make recommendations to the LG on certain service-related matters, including transfers, vigilance, and disciplinary proceedings.
- Powers of the LG: The bill expands the discretionary role of the LG, allowing him to override the recommendations of the Authority and act on his sole discretion in certain matters.
- Disposal of Matters by Ministers: The bill allows Delhi government ministers to issue standing orders for matter disposal, subject to consultation with the concerned Department Secretary. However, certain sensitive matters must be submitted to the LG for his opinion before issuing any order.
- Duties of Secretaries: Department Secretaries must bring certain matters to the notice of the LG, Chief Minister, and Chief Secretary, particularly those that may lead to controversy with other state governments, courts, or the central government.
Important changes related to Services
- Removal of Clause 3A: The bill eliminates a provision from the ordinance that prevented the Delhi Assembly from creating laws related to ‘State Public Services and State Public Service Commission.’ This gives the assembly the authority to make regulations concerning services.
- No Annual Report needed by NCCSA: The National Capital Civil Service Authority (NCCSA) will no longer be required to submit an annual report to Parliament and the Delhi Assembly, removing the obligation to present the report before these legislative bodies.
- Modification in Appointment Cycle: The bill dilutes provisions related to the appointment of chairpersons and members of various authorities, boards, commissions, and statutory bodies in Delhi. It removes the requirement for “orders/directions of ministers” in matters that need to be sent to the central government before the Lieutenant Governor and Chief Minister.
- Appointment of Delhi LG Powers: The bill empowers the Lieutenant Governor to select members of the Delhi government’s Boards and Commissions from a list of names suggested by the NCCSA, including recommendations from the Delhi Chief Minister. These Boards and Commissions are established by regulations passed by the Delhi Assembly.
Constitutional Debate
- Violation of Triple Chain of Accountability: Critics argue that the bill may violate the principle of parliamentary democracy by potentially giving the central government powers over services in Delhi, thereby breaking the triple chain of accountability between civil servants, ministers, and the electorate.
- LG’s Discretionary Powers: The bill expands the LG’s discretionary powers, allowing him to override the decisions of the Council of Ministers, which could potentially impede the functioning of the democratically elected government.
- Unclear Terms: Certain terms in the bill, such as “sole discretion” of the LG and criteria for matters brought to his notice, are considered vague and could lead to ambiguity in implementation.
- Opposition’s Concerns: Opposition leaders have voiced strong opposition to the bill, claiming that it undermines democratic heritage, the spirit of federalism, and the powers of an elected government.
Government’s Defense
- The Centre has defended the bill, asserting that India has a quasi-federal structure where the Centre holds primacy.
- The bill aims to balance the interests of Delhi and the nation.
Conclusion
- The Delhi Services Bill, 2023, has become a focal point of contention between the Delhi government and the central government.
- While proponents argue that it brings clarity to the distribution of powers, opponents claim that it may infringe upon the principles of parliamentary democracy and the constitutional separation of powers.
- As the debate continues, it remains to be seen how the bill’s implementation will unfold and its impact on governance in the national capital.
Back2Basics: Key Legislations and Judgements on Delhi
| Year | Development |
| 1956 | Delhi is classified as a Union Territory under the States Reorganization Act. |
| 1991-92 | 69th Constitutional Amendment (Article 239AA) passed, making Delhi a UT with legislature.
Government of National Capital Territory of Delhi (GNCTD) Act, 1991 is passed. 70th Constitutional Amendment exempts certain laws from being considered constitutional amendments. |
| 2015 | Ministry of Home Affairs takes control over services from Delhi legislature, empowering the LG. |
| 2016 | Delhi High Court rules that services lie outside the Delhi legislative assembly’s purview. |
| 2018 | Supreme Court rules that the LG must act on “aid and advice” of the Delhi council of ministers. |
| 2019 | Supreme Court delivers a split verdict on the issue of services. |
| 2021 | Union government amends the GNCTD Act, expanding the LG’s powers in certain matters. |
| 2023 | Supreme Court rules that Delhi government has control over services.
Central government promulgates an Ordinance to exclude “services” from Delhi legislature’s purview. GNCTD (Amendment) Bill, 2023 passed by the Parliament awaiting Presidents Assent. |
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Unconstitutional Expansion of Delhi’s Government Authority
Note4Students
From UPSC perspective, the following things are important :
Prelims level: ordinance making powers and related constitutional provisions and procedure
Mains level: Questionable constitutionality of the ordinance and the scope of court's verdicts
Central Idea
- The recent promulgation of The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 by the President of India has sparked a debate concerning the scope of the Supreme Court’s verdict and the constitutionality of the ordinance.
Court’s Verdict and interpretations
- In interpreting Article 239AA(3)(a), the Court ruled:
- It determined that the Legislative Assembly of the NCT Delhi has the authority with the exception
- The Court clarified that the executive power of the NCTD is co-extensive with its legislative power, encompassing all matters within its legislative jurisdiction.
- It established that the Union of India has executive power over three entries in List II, which the NCTD does not have legislative competence
- Court’s verdict: Based on these interpretations, the Court concluded that the executive power over services falls exclusively under the Government of the NCTD. This interpretation aligns with the language of Article 239AA(3)(a) of the Constitution.
- However, the subsequent ordinance promulgated by the President on May 19, through the exercise of legislative power under Article 123, expanded the scope of excepted matters in Article 239AA(3)(a).
Facts for prelims
| Article | Description |
| Article 123 | Empowers the President to issue ordinances during Parliament’s recess. |
| Article 239 | Deals with the administration of Union Territories. |
| Article 239A | Provides for the creation of a Legislative Assembly for the Union Territory of Delhi. |
| Article 239AA | Contains special provisions for the Union Territory of Delhi, including the establishment of a Legislative Assembly and governance structure. |
| Article 368 | Outlines the procedure for amending the Constitution. |
| Article 144 | Deals with the binding nature of the Supreme Court’s judgments on all courts and authorities in India. |
| Article 213 | Empowers the Governor of a state to promulgate ordinances during the recess of the state legislature. |
Why the constitutionality of the ordinance in this regard is highly questionable?
- Bypassing the constitutional amendment process: The ordinance expanded the scope of excepted matters in Article 239AA(3)(a). However, such an expansion would require a constitutional amendment under Article 368. By utilizing Article 123, which grants legislative power during the period of Parliament’s recess, instead of following the constitutional amendment process, the ordinance may be considered unconstitutional.
- Limits of legislative power: The power conferred on Parliament under Article 239AA(3)(b) is to make fresh laws, not to directly amend Article 239AA(3)(a) of the Constitution. Therefore, altering the scope of Article 239AA(3)(a) would require a constitutional amendment under Article 368.
- Colorable exercise of power: By expanding the scope of excepted matters without amending the Constitution through the appropriate procedure, the ordinance may be seen as a colorable exercise of power. It is essential to adhere to the constitutional amendment process to ensure the validity and legitimacy of legislative actions.
Implications of the Court’s Judgment
- Binding nature: When a Constitution Bench of the Supreme Court declares or interprets the law, its decision becomes binding on all courts and authorities in India according to Articles 141 and 144, respectively. The Court’s interpretation of Article 239AA(3)(a), which affirmed the exclusive executive power of the Government of the National Capital Territory of Delhi (NCTD) over services, is legally binding on all courts and authorities. This means that the government and other entities must adhere to this interpretation.
- Limits on executive power: The Court’s verdict clarified the extent of executive power held by the NCTD and the Union of India. This delineation of executive power sets clear boundaries and ensures a proper division of responsibilities between the NCTD and the Union government.
- Requirement of constitutional amendment: The Court’s verdict highlighted the need for a constitutional amendment to alter the scope of Article 239AA(3)(a) and expanding the exceptions in Article 239AA(3)(a) would require a constitutional amendment under Article 368. This reaffirms the importance of adhering to the constitutional amendment process to ensure the integrity and legitimacy of any changes made to the Constitution.
- Questioning the validity of the ordinance: The Court’s judgment raises questions about the validity of the subsequent ordinance promulgated by the President. The ordinance, which expanded the scope of excepted matters in Article 239AA(3)(a), may be deemed unconstitutional.
Conclusion
- The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 raises constitutional concerns. Its expansion of excepted matters without a constitutional amendment is likely to be struck down. The ordinance is void ab initio and represents a colorable exercise of power. Only Parliament, through proper amendment procedures, can alter the scope of Article 239AA(3)(a).
Also read:
| Power Struggle in Delhi: Balancing Democracy, Governance, and Accountability |
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Power Struggle in Delhi: Balancing Democracy, Governance, and Accountability
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Ordinance powers of Central government
Mains level: Battle for control in Delhi between the elected government and the Central government
Central Idea
- In recent times, we have witnessed a significant development in the power struggle between the Delhi government and the Central government. The Supreme Court’s unanimous recognition of the Delhi government’s control over administrative services marked an emancipation of the people’s will. However, the subsequent promulgation of an ordinance by the Central government to nullify the court’s decision has subverted the Delhi government’s power and handed it back to Central government appointees.
The Delhi government’s struggle for control
- Stripping of Control: In 2015, the Union Ministry of Home Affairs took away the elected Delhi government’s control over administrative services and handed it to the Lieutenant Governor (LG), an appointee of the Union government. This decision severely impeded the functioning of the Delhi government.
- Day-to-Day Problems: The transfer of control over services resulted in day-to-day problems in the functioning of important departments. Secretaries were frequently changed, leading to a lack of continuity, vision, and efficiency in governance.
- Frequent Transfers of Officials: The Delhi government witnessed frequent transfers of officials, hindering their ability to familiarize themselves with the departments they were working in. This constant reshuffling minimized the potential for effective governance and hindered the government’s relief efforts during crises like the COVID-19 pandemic.
- Lack of Functional Control: As the elected government had no functional control over services, it faced challenges in punishing errant officers and addressing issues such as vacancies, vigilance enquiries, and corruption cases. The government also witnessed a high number of vacancies in crucial positions due to mismanagement by the Lieutenant Governor.
- Conflicting Directives: Officials faced a dilemma in following directives as they felt duty-bound to honor the will of the elected government expressed by the people, while also staying under the functional control of the LG. This created confusion and hindered effective decision-making.
- Lack of Answerability: The Services Department, under the control of the LG, refused to answer questions raised by Members of the Legislative Assembly (MLAs) in the Vidhan Sabha. This limited transparency and accountability, preventing MLAs from obtaining crucial information related to vacancies, corruption cases, and other issues.
- Penalization of Officials: Honest and efficient officials were often penalized for their merits and subjected to punishment postings. This created an environment of uncertainty and discouraged officials from performing their duties effectively.
The Supreme Court’s intervention in the Delhi government’s struggle for control
- Recognition of Delhi Government’s Control: The Supreme Court, in a landmark decision, recognized the control of the Delhi government over administrative services. A five-judge Bench unanimously upheld the government’s authority, ensuring that decisions on appointments and transfers would be made by the elected government.
- Restoration of Chain of Accountability: The Court’s judgment restored the chain of accountability involving the people, the legislature, the government, and the bureaucracy. It reinforced the principle that elected governments have the power to govern and make decisions regarding the bureaucracy.
- Empowerment of the Elected Government: The Supreme Court’s decision empowered the elected Delhi government to make appointments and transfers based on performance and merit. It allowed the government to take action against errant officials and implement its policies effectively.
- Efficient and Compassionate Bureaucracy: The Court’s ruling paved the way for an efficient, honest, responsive, accountable, and compassionate bureaucracy. It provided clarity on the roles and responsibilities of officials, enabling them to work towards the development of Delhi and the welfare of its people.
- Clarification on Services Department: The Court’s intervention brought clarity regarding the Services Department, which had previously refused to answer questions raised by MLAs in the Vidhan Sabha. The judgment ensured that the elected government had functional control over the department, enabling transparency and answerability.
- Encouragement for Overhauling the Bureaucracy: The Delhi government, empowered by the Court’s decision, planned to overhaul the bureaucracy. It sought to establish a skilled administration model, leveraging the success of its health and education models.
The significance of the Supreme Court judgment
- Upholding Democratic Principles: The Supreme Court judgment recognizing the control of the Delhi government over administrative services upholds democratic principles. It affirms the importance of elected governments in decision-making and governance, ensuring that the will of the people expressed through their votes is respected.
- Restoration of Accountability: The judgment restores the chain of accountability involving the people, the legislature, the government, and the bureaucracy. It clarifies the roles and responsibilities of the elected government and the bureaucracy, fostering transparency and answerability.
- Empowering Elected Government: By recognizing the control of the elected Delhi government, the Court empowers the government to make appointments and transfers based on performance. It enables the government to take action against errant officials and implement its policies effectively, leading to improved governance.
- Strengthening Good Governance: The judgment paves the way for an efficient, honest, and responsive bureaucracy. It ensures that officials work towards the development of Delhi and the welfare of its people. It promotes vision, consistency, and efficiency in governance, fostering good governance practices
Impact of the ordinance issued by the Central government on the power dynamics in Delhi
- Shift of Control: The ordinance has effectively shifted control over services in Delhi back to the Lieutenant Governor (LG), appointed by the Central government. This overturns the Supreme Court’s decision recognizing the control of the elected Delhi government over administrative services. It diminishes the authority of the elected government and centralizes power in the hands of the LG.
- Undermining Democratic Process: The ordinance undermines the democratic process by disregarding the elected government’s role in matters of services. It reduces the value of the citizen’s vote and weakens the accountability of officers to the elected representatives. This move goes against the principles of cooperative federalism and disempowers opposition-run governments.
- Disruption of Policy Implementation: The ordinance hampers the implementation of policies and initiatives by the elected government. It allows the LG to exercise sole discretion in matters of services, potentially leading to conflicting views and hindrances in executing the government’s policies. This can result in delays, inefficiencies, and a lack of coordination in governance.
- Disempowerment of Elected Government: The ordinance disempowers the elected Delhi government by granting the LG significant decision-making powers. It limits the government’s ability to appoint officers who align with its policies and goals, undermining the concept of an accountable and responsive administration.
- Potential for Discord and Inefficiency: The ordinance introduces the possibility of discord between the LG and the elected government, as the LG can veto the Chief Minister’s views. This can create conflicts and hinder effective decision-making and cooperation between the two entities. The lack of coordination and cooperation can lead to bureaucratic delays, inefficiencies, and an inability to address the needs of the people.
- Centralization of Power: The ordinance reflects a trend of centralizing power in the hands of the Central government and the LG. It institutionalizes the use of the Governor/LG position to undermine democratically elected non-BJP governments and weaken their authority. This concentration of power challenges the principles of federalism and decentralization.
Facts for prelims
The constitutional provisions related to the ordinance powers
|
The way forward
- Respect for Judicial Decisions: It is crucial for all stakeholders to respect and abide by the decisions of the Supreme Court. Upholding the rule of law and the independence of the judiciary is essential for a functioning democracy. Any further legal challenges should be pursued through proper legal channels.
- Dialogue and Collaboration: It is important for the Central government and the elected Delhi government to engage in constructive dialogue and collaboration. Both entities should work towards finding common ground and resolving their differences through discussions and negotiations. This will help establish a cooperative and inclusive approach to governance.
- Clarity on Roles and Responsibilities: There should be a clear delineation of roles and responsibilities between the elected government and the Lieutenant Governor. This will help avoid conflicts and ensure effective coordination in decision-making and policy implementation. Establishing transparent guidelines for the exercise of power and cooperation is essential.
- Strengthening Cooperative Federalism: Both the Central government and state governments, including the government of Delhi, should uphold the principles of cooperative federalism. This involves respecting the autonomy and authority of elected state governments and promoting meaningful collaboration for the benefit of the people.
- Effective Governance Mechanisms: Efforts should be made to establish effective governance mechanisms that promote transparency, accountability, and efficiency. This includes streamlining administrative processes, ensuring timely appointments and transfers, and implementing performance-based evaluation systems for officials.
- Public Participation and Engagement: Engaging the public in decision-making processes and policy formulation can foster a sense of ownership and enhance the quality of governance. Platforms for public participation, such as citizen feedback mechanisms and public consultations, should be established to ensure the voices of the people are heard.
- Strengthening Institutions: The strengthening of democratic institutions, including the judiciary and administrative bodies, is crucial. Upholding their independence, ensuring merit-based appointments, and promoting professionalism and accountability within these institutions will contribute to effective governance.
- Focus on Development and Welfare: Irrespective of the power dynamics, the primary focus should be on the development and welfare of the people of Delhi. Efforts should be made to deliver essential services, address pressing issues, and implement policies that cater to the needs and aspirations of the citizens.
Conclusion
- The battle for control in Delhi between the elected government and the Central government has witnessed both the emancipation and subversion of the people’s will. It is crucial for all parties involved to prioritize the well-being of the citizens and work together to establish a cooperative and inclusive governance framework. By doing so, Delhi can overcome the challenges posed by the power struggle and strive towards effective governance that caters to the needs and aspirations of its people.
Also read:
| Governor’s Constitutional Limits: A Resolution to President |
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Delhi Governance New Ordinance
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Ordinances
Mains level: Issues with Ordinance
Central Idea
- The central government issued an Ordinance on May 19, overturning a unanimous Supreme Court verdict.
- The Ordinance grants the Lieutenant Governor of Delhi authority over services, challenging the elected government’s control over officials’ transfer and posting.
- This raises constitutional concerns about the balance of power between the elected government and the Lieutenant Governor.
Issues with this ordinance
- The Ordinance bestowed power over services to the Lieutenant Governor of Delhi.
- It established the “National Capital Civil Service Authority,” consisting of the Chief Minister and two senior IAS officials, to decide matters by majority vote.
- This provision potentially allows the elected Chief Minister’s viewpoint to be overruled.
Key issues with the current model of Governance of Delhi
- Undermining the elected government: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
- Lack of Executive Accountability: The Lieutenant Governor, who is the head of government, is not accountable to the assembly, which undermines the principle of executive accountability.
- Against the privilege of legislature: Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.
- Delay in decision-making: The requirement for LG’s approval for many decisions has led to delays in decision-making, which has impacted the development and governance of the city.
- Accountability issues: The division of responsibilities between the elected government and the Lieutenant Governor has led to difficulties in fixing responsibility for actions and decisions.
- Against Co-operative Federalism: The Act not only negates cooperative federalism but also upturns the fundamental principles laid down by the Supreme Court in Government of NCT Delhi vs Union of India case (2018).
- Control over Services Department: Governance has always been a contentious issue since Delhi is not a full state and the Services department comes under the L-G.
What is Ordinance?
- Under Article 123 of the Constitution, the President possesses law-making powers through the issuance of ordinances during the recess of Parliament.
- Article 213 grants the Governor of a state the authority to issue ordinances when the state legislative assembly or either of the two Houses (in states with bicameral legislatures) is not in session.
- However, there are limitations to this authority:
- Issuance during Recess: The President can only promulgate an ordinance when one or both Houses of Parliament are not in session.
- Immediate Action: An ordinance can only be issued when the President deems it necessary for immediate action.
- Justiciability: The President’s intentions to issue ordinances can be subject to judicial review if mala fide intentions are proven.
Features of Ordinances
Several characteristics and provisions are associated with ordinances:
- Retrospective Effect: An ordinance can have a retrospective application, meaning it can be enacted prior to its approval.
- Nullity during Parliamentary Session: An ordinance issued while Parliament is in session is considered null and void.
- Time Limit for Approval: An ordinance must be approved by Parliament within six weeks of its reassembly. Failure to do so leads to its expiration.
- Continuation of Acts and Laws: Acts, laws, and events resulting from the ordinance remain in effect until its expiration.
- Limits on Legislative Authority: Ordinances can only be passed on subjects within the legislative competence of the Indian Parliament.
- Protection of Fundamental Rights: Ordinances cannot be used to revoke the fundamental rights guaranteed by the Indian Constitution. Their enforcement would render them null and void if both Houses pass a resolution opposing them.
Issues with the Ordinances
The use of ordinances has raised concerns regarding their potential misuse and circumvention of democratic processes. Some key concerns are:
- Bypassing the Legislature: Deliberate bypassing of the legislature to avoid debate and deliberation on contentious legislative proposals undermines democratic principles.
- Repromulgation of Ordinances: Repromulgation without placing the ordinance before the legislature subverts democratic legislative processes and the separation of powers.
- Presidential Satisfaction: The satisfaction of the President as a requirement for issuing an ordinance provides scope for potential misuse.
- Ignoring Supreme Court’s Judgments: Instances of ordinances being promulgated despite Supreme Court judgments highlighting their conditional and exceptional nature raise concerns about adherence to constitutional principles.
Judicial Safeguards to avoid re-promulgation of ordinances
- Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
- It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
- Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.
Way ahead
- Every ordinance issued must be laid before both the Houses of Parliament or state legislature within six weeks from the reassembly of Parliament or state legislature and it ceases to exist if it is not approved within six weeks of reassembly.
- 44th Constitutional Amendment has reiterated that the satisfaction of the President to promulgate ordinance could be challenged in case an ‘immediate action’ was not required.
- Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature.
- The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.
Conclusion
- The recent Ordinance and its constitutional implications highlight the need for a balanced distribution of powers between the elected government and the Lieutenant Governor in Delhi.
- It is essential to uphold democratic principles and ensure that legislative functions are carried out by the appropriate constitutional authorities.
- A comprehensive review of the governance framework in Delhi may be necessary to address these concerns and ensure effective and harmonious governance in the capital city.
Get an IAS/IPS ranker as your personal mentor for UPSC 2024
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Delhi vs. Centre: Key takeaways of SC’s verdict
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239A
Mains level: Read the attached story
Central Idea
- The Supreme Court held that the National Capital Territory of Delhi has legislative and executive power over administrative services, with certain exceptions.
- The dispute revolves around the regulation of services and is a continuation of a previous tussle between the state government and the central government.
Key takeaways
(1) Disagreement with Justice Bhushan’s Judgment
- The Supreme Court stated that it does not agree with Justice Ashok Bhushan’s judgment that the Delhi government has no power over services.
(2) Article 239A and Legislative Assembly for NCT
- The Supreme Court highlighted that Article 239A establishes a legislative assembly for the National Capital Territory of Delhi.
- The members of the legislative assembly are elected by the electorate of Delhi, and the interpretation of Article 239A should support representative democracy.
(3) Limits of Power
- The court clarified that the control over services does not extend to areas related to public order, police, and land.
(4) Delhi Government Represents Representative Form of Government
- According to the Supreme Court, the Delhi government, like other states, represents the representative form of government.
- Any expansion of the central government’s power would contradict the Constitutional scheme.
(5) Impact on Ministers’ Control
- The court noted that if administrative services are excluded from the legislative and executive domains, ministers would be excluded from controlling civil servants responsible for implementing executive decisions.
(6) Executive Power and Existing Law
- The court clarified that the executive power of the state is subject to existing union laws.
(7) Principle of Collective Responsibility
- The Supreme Court emphasized that if officers do not report to ministers or fail to follow their instructions, the principle of collective responsibility will be affected.
(8) Triple Chain of Accountability
- Chief Justice of India DY Chandrachud highlighted that denying democratically elected governments the power to control officers would render the principle of the triple chain of accountability redundant.
Back2Basics: Article 239AA
- Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
- It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
- That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
- As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Nominated members cannot vote in Delhi Mayor Poll: Supreme Court
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Constitutional position of Mayor
Mains level: Not Much
Central idea: The Supreme Court ordered the Lieutenant Governor of Delhi to notify the first meeting of the Municipal Corporation of Delhi to elect a Mayor within 24 hours and held that nominated members cannot vote in these polls.
What is the issue?
- The issue at hand is whether the nominated members of the Municipal Corporation of Delhi should be allowed to vote in the mayoral polls.
- A Party had challenged the eligibility of the nominated members to vote, arguing that they were appointed by the Delhi government and were therefore not neutral.
- The Supreme Court of India has now ruled that the nominated members cannot vote in the mayoral polls.
What has the Supreme Court ruled?
- The Bench did not agree with the L-G’s contention that nominated members could vote in the first meeting.
- The court pointed out that Article 243R of the Constitution did not distinguish between the first and regular meetings.
Who is a Mayor?
- In India, the mayor is the head of a municipal corporation, which is responsible for providing essential services and infrastructure to the residents of a city or town.
- The mayor is usually elected by the members of the municipal corporation or council, and serves as the ceremonial head of the local government.
History of Mayor’s elections in India
- Municipal corporation mechanisms in India was introduced during British Rule with formation of municipal corporation in Madras (Chennai) in 1688, later followed by municipal corporations in Bombay (Mumbai) and Calcutta (Kolkata) by 1762.
- However the process of introduction for an elected President in the municipalities was made in Lord Mayo’s Resolution of 1870.
- Since then the current form and structure of municipal bodies followed is similar to Lord Ripon’s Resolution adopted in 1882 on local self-governance.
- The 74th Constitutional Amendment Act of 1992 was introduced providing for the transfer of 18 different powers to urban local bodies, including the election of a mayor and to recognise them which included Municipal Corporations, Nagar Panchayats, and Municipal Councils.
Elections and tenure
- The method of electing mayor and their tenure varies for each city in India.
- In Bengaluru (Karnataka) the election process is indirect with a tenure being for one year, in Mumbai (Maharashtra) it follows indirect elections with tenure for 2.5 years and Bhopal (Madhya Pradesh) follows a directly elected mayor with a term for 5 years.
Roles and Responsibilities
- Governs the local civic body.
- Fixed tenure varying in different towns.
- First citizen of city.
- Has two varied roles — Representation and upholding of the dignity of the city during ceremonial times and a presiding over discussions of the civic house with elected representatives in functional capacity.
- The Mayor’s role is confined to the corporation hall of presiding authority at various meetings relating to corporation.
- The Mayor’s role extends much beyond the local city and country as the presiding authority at corporation meetings during visits of a foreign dignitary to the city as he is invited by the state government to receive and represent the citizens to the guest of honour.
- At government, civic and other social functions he is given prominence.
Crack Prelims 2023! Talk to our Rankers
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Constitution Bench to hear Delhi statehood plea
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA, Consititution Bench
Mains level: Centre vs. Delhi Govt
A Constitution Bench led by Justice D.Y. Chandrachud will hear the legal battle between the Centre and the Government of Delhi for control over officials in the national capital.
What is a Constitution Bench?
- The constitution bench is the name given to the benches of the Supreme Court of India.
- The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
Constitution benches are set up when the following circumstances exist:
- Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
- President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
- Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
- The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
- Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
- K. Gopalan v. State of Madras (Preventive detention)
- Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
- Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.
Why in news now?
- A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
- The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
- On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.
What is the 2018 Judgment all about?
- By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
- It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
- In case of a difference of opinion, the L-G can refer it to the President for a decision.
- The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
- The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.
When power tussle began?
- Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
- It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
- The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.
Issue over control of administrative services
- The judges, however, differed on who should have control over administrative services.
- This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
- The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
- The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.
Article 239AA of the Indian Constitution
|
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Centre-Delhi Row heads to Constitution Bench
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA, Consititution Bench
Mains level: Centre vs. Delhi Govt
The Supreme Court has referred to a Constitution Bench the battle between the Centre and the Delhi government for control over bureaucrats in the Capital.
What is a Constitution Bench?
- The constitution bench is the name given to the benches of the Supreme Court of India.
- The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
Constitution benches are set up when the following circumstances exist:
- Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
- President of India seeking SC’s opinion: When President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
- Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
- The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
- Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
- K. Gopalan v. State of Madras (Preventive detention)
- Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
- Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.
Why in news now?
- A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
- The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
- On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.
What is the 2018 Judgment all about?
- By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
- It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
- In case of a difference of opinion, the L-G can refer it to the President for a decision.
- The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
- The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.
When power tussle began
- Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
- It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
- The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.
Issue over control of administrative services
- The judges, however, differed on who should have control over administrative services.
- This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
- The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
- The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.
Back2Basics: Article 239AA
- Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
- It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
- That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
- As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
What is the Delhi Dual Governance Conundrum?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA
Mains level: Centre vs. Delhi Govt
New Delhi has been at the flashpoint of innumerable power struggles these days.
Why in news?
- In the absence of statehood for Delhi, there has been a prolonged confrontation on the relative powers of the territorial administration and the Union government.
Dilemmas of Dual Governance
- Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
- It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
- That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
- As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi
[a] Centre-State Dispute
- Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991.
- Since 1991, Delhi had been made a UT with an assembly with “limited legislative powers”.
- Cordial relations have prevailed between the Central and Delhi governments since 1996 and all differences have been resolved through discussions – with a few exceptions.
[b] Lt. Governor vs the CM
- The Article 239AA while conferring on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police and public order – contained one sore point.
- It said that in case of a difference between the L-G and the council of ministers, the matter shall be referred to the president by the LG for his decision and pending such decision the LG can take any action on the matter as he thinks fit.
- It is this issue that the constitution bench of the Supreme Court resolved in 2018, when it said that the government does not have to seek the concurrence of the L-G on its decisions.
- Any differences between them should be resolved to keep in view the constitutional primacy of representative government and co-operative federalism.
It is after this judgement, the Centre brought up this Bill.
[c] NCT of Delhi (Amendment) Bill, 2021
- Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
- This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
- The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.
[d]
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
The Delhi MCA Act and the spirit of federalism
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA
Mains level: Paper 2- Delhi statehood issue
Context
Recently, both Houses of Parliament passed the Delhi Municipal Corporation (Amendment) Act, 2022, to unify the trifurcated Delhi Municipal Corporations.
Background of the trifurcation
- The split-up was first proposed in the 1987 Balakrishnan Committee Report which was bolstered in the 2001 Virendra Prakash Committee Report.
- The proposal finally took shape in 2011 and the law to trifurcate was enacted.
- A seven-member Delhi Legislative Assembly Panel was set up in 2001 to study the recommendations and suggest modalities.
- Trifurcation in 2011: The proposal finally took shape in 2011 and the law to trifurcate was enacted.
Changes introduced by the amendment
- The law provides that the power to determine the number of wards, extent of each ward, reservation of seats, number of seats of the Corporation, etc. will now be vested in the Central government.
- The number of seats of councillors in the Municipal Corporations of Delhi is also to be decided now by the Central government.
- By exercising that very power, the number of councillors to the Municipal Corporations of Delhi has been reduced from 272 to 250.
- The Central government has also taken over powers from the State to decide on matters such as ‘salary and allowances, leave of absence of the Commissioner, the sanctioning of consolidation of loans by a corporation, and sanctioning suits for compensation against the Commissioner for the loss or waste or misapplication of municipal fund or property
Issues with the changes made
- The Central government’s line is that the amendment has been passed as in Article 239AA of the Constitution, which is a provision that provides for special status to Delhi.
- No consultation with Delhi govt.-The large-scale changes by the Central government has been done without any consultation with the Delhi government.
- Not in line with Part IXA of the Constitution: Part IXA specifically states that it will be the Legislature of the State that will be empowered to make laws concerning representation to the municipalities.
- Part IXA is a specific law while Article 239AA is general law: The argument of the Centre that Article 239AA can be applied over and above Part IXA of the Constitution does not hold good as the latter is a specific law that will override the general law relatable to Article 239AA.
- Against the federalism: In State of NCT of Delhi vs Union of India judgment the Supreme Court held, “The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.”
- It was made clear that the aid and the advice of the State government of Delhi would bind the decision of the Lieutenant General in matters where the State government has the power to legislate.
- No doubt, the amendment to the Delhi Municipal Corporation Act, 1957 will lead to further litigation on the aspect of a sharing of powers between the State of NCT of Delhi and the Central government.
Conclusion
The interference of the Centre in matters such as municipal issues strikes a blow against federalism and the celebrated Indian model of decentralisation.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Delhi Municipal Corporation (Amendment) Bill, 2022
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Various provisions of the 74th Constitutional Amendment Act
Mains level: Centre vs. Delhi Govt
The Delhi Municipal Corporation (Amendment) Bill, 2022 was tabled in Lok Sabha.
What is the MCD Amendment Bill?
- The Bill seeks to amend The Delhi Municipal Corporation Act, 1957, to effectively undo the earlier 2011 amendment to the Act.
- Under the 2011 Act, the erstwhile Municipal Corporation of Delhi (MCD) was trifurcated into separate North, South, and East Delhi Municipal Corporations.
Key features of the Bill
(1) Unification of Municipal Corporations in Delhi:
- The Bill replaces the three municipal corporations under the Act with one Corporation named the Municipal Corporation of Delhi.
(2) Powers of the Delhi government:
- The Act as amended in 2011 empowers the Delhi government to decide various matters under the Act.
- These include:
- Total number of seats of councillors and number of seats reserved for members of the Scheduled Castes,
- Division of the area of corporations into zones and wards,
- Delimitation of wards,
- Matters such as salary and allowances, and leave of absence of the Commissioner,
- Sanctioning of consolidation of loans by a corporation, and
- Sanctioning suits for compensation against the Commissioner for loss or waste or misapplication of Municipal Fund or property
- Similarly, the Act mandates that the Commissioner will exercise his powers regarding building regulations under the general superintendence and directions of Delhi government.
- The Bill instead empowers the central government to decide these matters.
(3) Number of councillors:
- The Act provides that the number of seats in the three corporations taken together should not be more than 272.
- The 14th Schedule to the Act specifies 272 wards across the three Corporations.
- The Bill states that the total number of seats in the new Corporation should not be more than 250.
(4) Removal of Director of Local Bodies:
- The Act provides for a Director of Local Bodies to assist the Delhi government and discharge certain functions which include:
- Coordinating between Corporations,
- Framing recruitment Rules for various posts, and
- Coordinating the collecting and sharing of toll tax collected by the respective Corporations.
- The Bill omits this provision for a Director of Local Bodies.
(5) Special officer to be appointed by the central government:
- The Bill provides that the central government may appoint a Special Officer to exercise powers of the Corporation until the first meeting of the Corporation is held after the commencement of the Bill.
(6) E-governance system for citizens:
- The Bill adds that obligatory functions of the new Corporation will include establishing an e-governance system for citizen services on anytime-anywhere basis for better, accountable, and transparent administration.
(7) Conditions of service for sweepers:
- The Act provides that a sweeper employed for doing house scavenging of a building would be required to give a reasonable cause or a 14 day notice before discontinuing his service.
- The Bill seeks to omit this provision.
Issues with the Amendment Bill
The Bill, when passed, will not return the MCD exactly to its pre-2011 situation. There are many sections in the Bill that will make the new MCD very different from the older one.
- New delimitation exercise: Reducing the number of seats means a new delimitation exercise will have to be conducted, which experts say will take at least three months, but is more likely to take six months.
- Bureaucratization: Appointing a Special Officer means that until the elections are concluded, the Centre will likely appoint an officer to run the corporation. The Bill also does away with the provision of appointing a Director of Local Bodies by the Delhi government.
- Central hegemony: The other significant change is the replacement of the word “government” with “Central government” in all places. The bill hence seeks to curtail the powers of the elected govt of New Delhi by introducing central hegemony.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
How the GNCTD (Amendment) Act affects functioning of Delhi Assembly
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA and 239AB
Mains level: Paper 2- Effect of GNCTD (Amendment) Act on functioning of Delhi Assembly
The article highlights the implications of the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 on functioning of Assembly and its committees.
Context
The Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 has been criticised as a retrograde law. However, what deserves equal attention is the Act’s assault on the functioning of Delhi’s Legislative Assembly.
Background of GNCTD Act
- The GNCTD Act was enacted in 1992.
- Under the Act, Delhi Legislative Assembly was given the power to regulate its own procedure, as well as the conduct of its business.
- This sought to realise a delicate balance reflecting Delhi’s unique constitutional position: neither full state nor a centrally governed Union Territory.
How amendment affects functioning of Assembly
- Its standards of procedure and conduct of business have been firmly tethered to that of the Lok Sabha, depriving Delhi’s elected MLAs of an effective say in how their Assembly should be run.
- The Amending Act prohibits the Assembly from making any rule enabling either itself or its committees to consider any issue concerned with “the day-to-day administration of the capital” or “conduct inquiries in relation to administrative decisions”.
- The most significant impact of this shall be on the exercise of free speech in the Assembly and its committees.
- The amendment impeded the Assembly from performing its most basic legislative function — that of holding the executive to account by restricting its ability to freely discuss matters happening in the capital.
Impact on committees
- The deliberations and inputs of committees often pave the way for intelligent legislative action.
- In a way, they act as the eyes and ears for the whole House, which has neither the time nor the expertise to scrutinise issues in depth.
- It would be impossible for committees to perform this function without the power to conduct inquiries.
- Pre-emptively injunct a committee from conducting an inquiry “in relation to the administrative decisions” (an extremely broad exception) completely negates the ability of committees to function effectively as the Assembly’s advisors and agents.
- The quality of legislative work emanating from the Assembly is thus ultimately bound to suffer.
Consider the question “What are the reasons for frequent disputes between Delhi government and the Lt. Governor? Would the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 succeed in ending that trend?”
Conclusion
The amendment deprive the Delhi Assmbly of its very basic functions and render it a ‘legislature’ in name only. Surely, Delhi’s voters deserve better than that. The Government need to reconsider the provisions of the amendment act.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Centre notifies GNCT Act that gives more powers to Delhi L-G
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA
Mains level: Paper 2- GNCT of Delhi Amendment Act notified by the Centre
GNCT Act comes into effect
- The Ministry of Home Affairs (MHA) issued a gazette notification stating that the provisions of the Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021, would be deemed to have come into effect from April 27.
- The Act defines the responsibilities of the elected government and the L-G along with the “constitutional scheme of governance of the NCT” interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.
What the Amendment seeks to achieve
- The Act will clarify the expression Government and address ambiguities in legislative provisions.
- It will also seek to ensure that the L-G is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to clause (4) of Article 239AA of the Constitution.
- Clause (4) of Article 239AA provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.
- Now Act will also provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Ending ambiguity in Delhi government through amendment to NCT Act
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA and 239AB
Mains level: Paper 2- Amendments to NCT Act
The article highlights the objectives of amendments to the Government of the National Capital Territory (NCT) of Delhi Act.
Background of Article 239AA and 239AB
- On December 20, 1991, Home Minister S B Chavan tabled the Constitution Amendment Bill in the Lok Sabha to add Article 239AA and 239AB to our Constitution.
- The Bill was passed unanimously with all 349 members in the Lok Sabha supporting the bill.
- The amendment paved the way for setting up a legislative assembly and a council of ministers for the National Capital Territory (NCT) of Delhi.
What the recent amendment to NCT Act seeks to achieve
- The amendments aimed to clear ambiguities in the roles of various stakeholders.
- It also seeks to provide a constructive rules-based framework for stakeholders within the government of Delhi to work in tandem with the Union government.
- The amendment that was passed by Parliament aims to bring in consistency that the Delhi government has acknowledged and course-corrected on.
- As the Act now has the President’s assent, we also need to ensure that the LG is made more accountable.
- This can be done by stipulating a maximum time limit to decide on matters that are referred to the LG in the case of legislative proposals and administrative matters in the rules.
- The constitutional amendment passed in 1991 empowers the Parliament to enact laws supplementing constitutional provisions.
- Similarly, the Government of NCT of Delhi also has the power to enact laws regarding matters specified under the state list and concurrent list, to the extent these apply to a Union territory.
- In the case of the Government of NCT of Delhi, it has no legislative competence in matters pertaining to the police, public order, and land, which are in the state list but do not apply to Union Territories.
- The risk of incremental encroachments on these subjects by the Delhi Legislative Assembly can have severe ramifications for Delhi.
- Similarly, making the Delhi assembly rules consistent with the rules of the Lok Sabha or ensuring that the opinion of the LG is taken can only ensure clarity and foster an environment of co-operation.
Promoting cooperative federalism
- The government has been promoting cooperative federalism, which is evident from the tangible steps that have been taken.
- The creation of NITI Aayog, the establishment of the GST council, and the restructuring of central schemes are clear examples of promoting fiscal federalism.
- Cooperative federalism requires an environment of trust and mutual cooperation.
- A necessary condition for such an environment is the distinct delineation of roles and responsibilities, the removal of ambiguities, and the definition of a clear chain of command among stakeholders.
- In this regard, it was important to define, without a doubt, who represents the government in the unique case of Delhi.
Consider the question “What are the objectives of the recent amendment to the NCT Act? What will be its implications for governance in Delhi?”
Conclusion
Our national capital hosts the country’s legislature, the seat of the Union government, the judiciary, diplomatic missions, and other institutions of national importance. It deserves smooth functioning and cannot be subject to misadventures arising from the ambiguities in the roles and responsibilities of its stakeholders.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
How amendment bill will affect Delhi’s administration
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA
Mains level: Paper 2- Issues with the Bill to amend Delhi Government-LG relations
The article highlights the issues with the amendment bill introduced by the Centre to clarify the term ‘Government’.
Why Delhi was made Union Territory: Historical background
- When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States.
- The last two were administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
- First, 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.
- Third, 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.
- Hence, Delhi was initially made a Part C State.
- In 1951, a Legislative Assembly was created with an elected Chief Minister.
- 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.
- 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.
Balakrishnan Committee report
- In 1989, the Balakrishnan 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.
- 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.
LG-Delhi Government conflict
- A Bench in 2018 ruled over the conflict and said that Parliament envisaged a representative form of Government for the NCT of Delhi.
- The Bench also said that the Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.
- 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.
Issues with the Amendment Bill
- The central government recently introduced a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression ‘Government’ in 2018 Supreme Court judgement.
- 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.
- It further provides that before taking any executive action to exercise powers of Government, the opinion of Lieutenant Governor shall be obtained on all such matters as may be specified by Lieutenant Governor.
- The population of Delhi which counts among the highest in the world, will have an unrepresentative administration.
- 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.“
Consider the question “Examine the issues with Government of National Capital Territory of Delhi (Amendment) Bill, 2021. Do you think that the Bill will avoid the conflict between the LG and the Delhi government?”
Conclusion
The Amendment Bill should be reconsidered given its impact on the administration of the Delhi government.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
National Capital Territory of Delhi (Amendment) Bill, 2021
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Special Status for New Delhi
Mains level: Delhi- LG issue
The Ministry of Home Affairs (MHA) moved the NCT of Delhi (Amendment) Bill, 2021 to the Lok Sabha where it proposed that “government” in Delhi means the Lieutenant Governor of Delhi.
What is the news?
- The Bill gives discretionary powers to the L-G of Delhi even in matters where the Legislative Assembly of Delhi is empowered to make laws.
- The Delhi state govt has criticized the bill saying that it seeks to drastically curtail powers of the elected government”, which is “against” the Supreme Court judgment of 2018.
NCT of Delhi (Amendment) Bill, 2021
- Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
- This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
- The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.
What purpose does the 1991 Act serve?
- Delhi’s current status as a UT with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution.
- The Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital.
- For all practical purposes, it outlined the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the CM with respect to the need to furnish information to the L-G.
What is the 2018 Supreme Court Verdict?
- In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
- It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
- The L-G was bound by the aid and advice if the council of ministers, it had said.
- The Bench of then CJI status of the LG 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”.
- It had also pointed out that the elected government must keep in mind that Delhi is not a state.
Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”
What will change if the amendments are cleared by Parliament?
- Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision.
- It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision.
- But the amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.
- The Bill seeks to bar the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.
Does the L-G enjoy no discretionary power under the current arrangement?
- The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA (4).
- The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the SC verdict to keep the L-G in the dark about its decisions.
- But the SC had also categorically pointed out that the L-G should not act in a mechanical manner without due application of mind so as to refer every decision of the CM to the President.
What are the state government’s fears?
- From 2015 to 2018, the government was engaged in a constant battle with the Centre over policy decisions and the powers of the L-G with the elected government.
- The SC judgment gave the Delhi govt a freer hand in terms of policy decisions.
- The government insiders have maintained that it was because of the judgment that the government was able to clear policy decisions like giving free power to those using under 200 units, free bus rides for women.
- The amendments will have far-reaching implications — beyond just the tussle between any political parties.
Back2Basics: Special Status for New Delhi
- Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
- It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
- That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
- As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
structural issues with legislatures in Union Territories
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239A
Mains level: Paper 2- Structural flaws in the composition of legislature of UTs
There are structural flaws in the provisions of the composition of legislature and the relationship between the council of ministers and the Administrator in the UTs.
Pattern in the resignations of MLAs
- Recently, the resignations of MLAs from the Puducherry Assembly led to the fall of government there.
- The same had happened in 2019 in Karnataka.
- Resigning from the membership of the House is every member’s right.
- But according to Article 190 of the Constitution, the resignation should be voluntary or genuine.
- If the Speaker has information to the contrary, he or she is not obliged to accept the resignation.
- But there is by now a familiar pattern to the resignations of Members of the Legislative Assembly.
- Such resignations invariably lead to the fall of the government.
Purpose of providing legislature to UTs
- The Constitution-makers/ Parliament provided a legislature and Council of Ministers to some of the UTs to fulfil the democratic aspirations of the people of these territories.
- There was a realisation that the administration of these territories directly by the President through the administrators under Article 239 does not meet the democratic aspirations of the people.
- The creation of a legislature and a Council of Ministers is logical and in consonance with the policy of the state to promote democracy.
Structural issues with legislature in UTs
1) Nomination of members and issues with it
- A closer look at the relevant provisions in the Constitution reveals that this professed aim has often been sought to be defeated by the Union.
- Article 239A was originally brought in, in 1962, to enable Parliament to create legislatures for the UTs.
- A legislature without a Council of Ministers or a Council of Ministers without a legislature is a conceptual absurdity.
- Similarly, a legislature that is partly elected and partly nominated is another absurdity.
- The issue of nomination of members to the Puducherry Assembly had raised a huge controversy.
- The Government of Union Territories Act provides for a 33-member House for Puducherry of whom three are to be nominated by the Central government.
- So, when the Union government nominated three BJP members to the Assembly without consulting the government, it was challenged in the court.
- Finally, the Supreme Court (K. Lakshminarayanan v. Union of India, 2019) held that the Union government is not required to consult the State government for nominating members to the Assembly and the nominated members have the same right to vote as the elected members.
- There is provision for nomination of members to the Rajya Sabha [Article 80 (i)(a)].
- But clause (3) of the Article specifies the fields from which they will be nominated.
- But in the case of nomination to the Puducherry Assembly, no such qualification is laid down either in Article 239A or the Government of Union Territories Act.
- This leaves the field open for the Union government to nominate anyone irrespective of whether he or she is suitable.
- As things stand, the law invites arbitrariness in dealing with the nomination of members to the UT legislature.
2) Administrator’s powers
- The administrator has the right to disagree with the decisions of the Council of Ministers and then refer them to the President for a final decision.
- The President decides on the advice of the Union government.
- So, in effect, it is the Union government which finally determines the disputed issue.
- Although in NCT of Delhi v. Union of India (2019), the Constitution Bench of the Supreme Court had said that the administrator should not misuse this power.
- The bench also said that the Administrator should use it after all methods have failed to reconcile the differences between him/her and the Council of Ministers.
- As a matter of fact, such conflicts between the administrator, who is the nominee of the President, and the elected government is inherent in the constitutional arrangement created for the UTs.
Consider the question “The conflicts between the administrator, who is the nominee of the President and the elected government is inherent in the constitutional arrangement created for the UTs. Comment.”
Conclusion
Experience shows that the UTs having legislatures with ultimate control vested in the central administrator are not workable. So far as the conspiratorial resignation by legislators to bring down their own government is concerned, the political class will have to get the better of the predatory instincts of political parties through constitutional or other means.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Bill coming on Delhi government and L-G functions
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Art. 239AA
Mains level: Delhi govt. - LG power tussle
The Ministry of Home Affairs (MHA) is all set to introduce legislation to amend a 1991 Act pertaining to the powers and functions of the Delhi government and the Lieutenant Governor (LG).
What is the new bill?
- The Bill is likely to clearly define the powers of the LG and the Delhi government on the lines of the Supreme Court judgment of February 2019.
- It is likely to give more teeth to the LG’s office.
Why need such a law?
- The Delhi UT government is often at loggerheads with the Centre on administrative matters in the Capital.
What made it to the news?
- A Supreme Court Bench of Justices A.K. Sikri and Ashok Bhushan had, other than the question of services, given a unanimous verdict on the role of the two authorities.
- In the February 14, 2019 verdict, the court upheld as “legal” the MHA’s 2015 notifications authorising the LG to exercise powers in relation to services.
- It had directed the Anti-Corruption Branch (ACB) police not to take cognizance of offences against Central government officials.
SC confirms HC findings
- The apex court confirmed the Delhi High Court’s finding that the ACB’s jurisdiction is confined to Delhi officials and statutory bodies and does not extend to Central government officials.
- Last year, the MHA notified the rules for the newly created UT of J&K, where it provided a solution in case of difference of opinion between the LG and a Minister.
- It ruled that if no agreement could be reached even after a month, the decision of the Lieutenant Governor shall be deemed to have been accepted by the Council of Ministers.
What are the key propositions?
- According to changes proposed in the new Act, the LG could act in his discretion in any matter that is beyond the purview of the powers of the Assembly of Delhi.
- This would be in matters related to the All India (Civil) Services and the ACB.
Back2Basics: Special Status for New Delhi
- Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through 69th constitutional amendment.
- It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
- That’s when Delhi was named as National Capital Region (NCT) of Delhi.
- As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
New Bill on powers of Delhi government, Lieutenant Governor
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Art. 239AA
Mains level: Special provisions for NCT
The Ministry of Home Affairs (MHA) is likely to introduce legislation in the ongoing Parliament session to amend a 1991 Act pertaining to the powers and function of the Delhi government and the Lieutenant Governor.
Try this PYQ:
Q. Consider the following statements
- Union territories are not represented in the Rajya Sabha.
- It is within the purview of the Chief Election Commissioner to adjudicate the election disputes.
- According to the constitution of India, the Parliament consists of the Lok Sabha and the Rajya Sabha only.
Which of the statement(s) given above is/are correct?
(a) Only 1
(b) 2 and 3
(c) 1 and 3 only
(d) None
Key propositions of the Bill
- The Bill proposes to clearly spell out the functions of the Council of Ministers and the Lieutenant-Governor (L-G) by giving more discretionary powers to the L-G.
- As per the Bill, the L-G could act in his discretion in any matter that is beyond the purview of the powers of the Legislative Assembly of Delhi in matters related to the All India (Civil) Services and the Anti Corruption Branch.
- It will also give more teeth to the L-G, and the validity of any decision taken as per such discretion shall not be questioned.
Back2Basics: Special provisions for New Delhi
- The Union Territory of Delhi with a Legislative Assembly came into being in 1991 under Article 239AA of the Constitution inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991’.
- It said that the UT of Delhi shall be called the National Capital Territory of Delhi.
- The administrator thereof appointed under Article 239 shall be designated as the Lieutenant-Governor.
- According to the existing Act, the Legislative Assembly of Delhi has the power to make laws in all matters except public order, police, and land.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Delhi Full Statehood Issue
Jurisdictional conflict in the running of Delhi Government
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 239AA and Article 239AB
Mains level: Paper 2- Conflict between Lt. Governor and the Delhi Government
The article analyses the tussle between the Delhi Government and the Lt. Governor.
What the 2018 SC judgement was about
- The Supreme Court in Government of NCT of Delhi vs. Union of India (2018) decided on the conflicts between the government of NCT and the Union Government and its representative, the Lieutenant Governor.
- It reminds the Lt. Governor what his real functions are.
- It tells the State government that it should remember that Delhi is a special category Union Territory.
- It lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
- It did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government.
Settled issues and clarifications
- The Supreme Court affirming that the Lt. Governor is bound to act on the aid and advice of council of ministers except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
- The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government.
- However, Article 239AA (4) (proviso) which says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision.
- If the Lt. Governor thinks that the matter is urgent he can take immediate action on his own.
How Article 239 AA(4) matters
- Lt. Governor can frustrate the efforts of the government, by declaring that there is a difference of opinion on any issue and refer it to the President.
- Refering matter to the President in reality means the Union Home Ministry.
- The Lt. Governor being its representative, it is easier for him to secure a decision in his favour.
- The State government will be totally helpless in such a situation.
- The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point.
- When the government decided to appoint them, the Lt. Governor referred it under proviso to Article 239AA (4) to the President stating that there is a difference of opinion.
- This episode clearly points to the fault lines which still exist in the power equations in the capital’s administrative structure.
But, can Lt. Governor refer routine administrative matter to the President?
- A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that he cannot.
- The Supreme Court says “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.
- Court also says that “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule”.
- The President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.
Executive powers and legislative powers
- Parliament can legislate for Delhi on any matter in the State List and the Concurrent List.
- But the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.
- The executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
- The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4).
Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”
Conclusion
In the Constitutional scheme adopted for the NCT of Delhi Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
source
Should Delhi be given statehood?
- Why in news?
- Background
- What is the present status of Delhi?
- Arguments favoring statehood in Delhi
- Why not to give statehood?
- The way ahead
Why in news?
Recently Supreme Court has sought more clarity on the scope and boundaries of the relationship between the Delhi government and the Centre as at times, both the Centre and Delhi government contest each other’s right to administer and govern the National Capital and demands have been raised to give statehood to Delhi.
Background
The elected governments have time and again felt crippled in decision-making as the assembly does not have powers like other state assemblies. All political parties that have been in power in Delhi have lamented this and raised the demand for full statehood for the national capital.
What is the present status of Delhi?
- Presently, Delhi enjoys the character of a special Union Territory that has some unique institutions like an elected Legislative Assembly and a High Court.
- In 1991, the Parliament, through the 69th amendment, introduced Article 239AA (Special Provisions with respect to Delhi) and conferred the right upon the people of the NCT of Delhi to elect their own legislature and government to make laws under certain entries of the state list of the Seventh Schedule of the Constitution and execute these laws respectively.
- This amendment, however, did not confer full statehood upon Delhi and powers with respect to public order, land and police remained with the Union government.
Argument favoring statehood to Delhi
- Two power centres create confusion
In the current system, power is divided between the chief minister and the Central government through the LG. This dual control creates an inherent tension between the two power centres.
- Union government exercises immense authority
Though Delhi Assembly is given the powers to govern and make laws on all but three subjects – public order, police and land but the Union government has been violating this constitutional provision and has been exercising authority on several subjects.
- Law & order should be the state government’s responsibility
Delhi Police reports to the Union Home ministry and this ties their hands in ensuring maintenance of law and order in the capital. To avoid the tussle, the Centre can create and deploy a central police force for guarding its buildings and for diplomatic duties. For law and order duties, Delhi’s elected government must be in full command.
- Delhi’s land cannot be under Centre’s control
The Delhi government cannot decide on its own the use that the city’s land should be put to. This leads to conflict at times.
- Delhi does not have its own officers
Each state of India has its own Public Service Commission that recruits bureaucrats to run the state government’s administrative machinery. Delhi, being a Union territory, does not have a cadre of officers of its own and is part of a common cadre shared with other UTs.
- It is argued that if Delhi had its own cadre, like all states have, the impasse between the offices of the CM and the LG would not have arisen.
- National capitals all over the world have sufficient powers
- Experts say even if some national capitals like Washington DC, London and Paris are not states, all of them have a governance structure that gives the local government legislative, financial and administrative powers. Delhi has none of these.
- As Delhi expands, clarity over jurisdiction of the local government will become increasingly imperative.
- Some experts have argued that the assembly should be dissolved and the Centre be given full charge of the national capital. However, the abolition of an assembly once created will mean taking away the democratic rights of the people.
Why not to give the statehood?
- Delhi is different than other UTs because as the nation’s capital, it must reflect the best that the country offers. And that is only possible if land-use, zoning plans and building regulations are managed in consonance with the standards expected of a capital city. Parallels cannot be drawn with state capitals like Mumbai, Bangalore or Chennai (although that is constantly being done).
- Statehood would bring land allocation under the city government, whose concern for the country’s capital would yield to satiating local demands.
- In the national capital, the protection of dignitaries and the maintenance of public order are the highest priorities. The upkeep of maximum standards of security is how the safety of the capital is judged. An attack on a Union minister or diplomat would guarantee an ‘unsafe’ tag not just for Delhi but the country. So, police cannot be kept solely in the hands of state government.
- An important point against the grant of statehood to the Delhi is the inability of its city government to bear the cost of police salaries and the pension liabilities of all city government employees, which are today borne entirely by the Centre.
- It would weaken the case for delegation of authority under various statutes which is feasible and a necessity.
What’s the way ahead
- Full statehood will definitely bring better opportunities for the residents of Delhi and financial increments for the government’s budget but not without its own share of responsibilities like provision of top security infrastructure for law & order and internal security
- From the point of view of the citizens of Delhi, what matters is that systems are transparent and day-to-day work is attended to. This does not need statehood—only good governance
References: