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The Delhi High Court’s Thursday order, stating in unambiguous terms that the capital is a Union Territory, should be an opportunity for the AAP government to get down to the important business of governance.
Unfortunately, the first comments emerging from AAP quarters are anything but assuring, with some strong words against the judgement coming from Deputy CM Manish Sisodia in favour of Arvind Kejriwal. Hopefully, once passions are cooled, a more reasoned approach will be adopted by them.
The judgement covered a whole bunch of cases, which the court had combined as one, since they are largely related to the same issue. Two filed by the AAP government itself challenging the actions of the lieutenant governor (L-G) and the home ministry order clarifying the L-G’s powers.
The premise behind AAP’s case was that since Delhi had an elected government, it was a state of the Union for all practical purposes, except with regards to the three reserved subjects of police, law and order and land. And that it had unfettered powers on all other subjects with the L-G limited to acting on the ‘aid and advice’ of the elected government in respect of the three reserved subjects only.
Ill-Advised Legal Strategy
AAP’s legal strategy was baffling to say the least. After itself filing the cases before the high court, it later filed a plea arguing that the HC was not competent to decide on the matter. This followed after all the arguments had been heard. AAP’s stand was that the dispute was of a federal nature and only the Supreme Court could adjudicate in the matter under Article 131 of the Constitution. Their subsequent petition was dismissed by the Supreme Court, which held that any party was free to approach it after the HC judgement.
The high court’s order is extremely detailed, going into the origins of the administration of Delhi since it was carved out of Punjab into a chief commissioner’s province in 1912 when it became the capital of India. Subsequently, it became a Part C State, with an elected legislature, with the adoption of the Constitution. Thereafter, the Constitution was amended and Delhi became a Union Territory, a new classification in 1956 with the States Reorganisation Act. And in 1991, the Constitution was again amended to enable Parliament to change Delhi’s administrative set-up by creating a legislature. Which it did.
HC Order Clears the Air
The judgement has two clear focus, namely whether the dispute is a federal one, and two, the role of the L-G in Delhi’s governance.
It cited various Supreme Court rulings that not all disputes between a state(s) and the Union or among them was federal in nature. The test of federalism was whether it is related to any ‘legal right’, and again basing its reasoning on the SC judgement, it held that this was not so here.
On the substantial issue of the role of the L-G and whether in view of the fact that Delhi had an elected assembly, it was a state in all but name, the court used detailed reasoning and cited earlier SC cases to hold that Delhi was a Union Territory. The SC had in the NDMC vs State of Punjab held that Parliament was the legislature for Delhi. Any Act passed by the Delhi legislative assembly in respect of any subject could be overridden by an Act of Parliament, which position does not apply to state assemblies in respect of subjects on the State List of the Constitution.
Delhi Needs Governance
- AAP’s legal strategy was flawed from the
beginning with its main argument being that only the Supreme Court can
adjudicate in the case.
- High Court has cleared the air on the
status of Delhi as that of a Union territory with L-G as its constitutional
head.
- AAP had challenged the provisions of the
Article 239 AA under which L-G is the executive authority of Delhi as the nominee
of the President.
- Contrary to AAP’s contention that L-G has
arbitrary powers, L-G is in fact answerable to the Parliament.
- Since 1993-2013, Delhi has had state
governments led by parties that were not ruling at the Centre; there is no
excuse for not providing the much needed governance.
Delhi’s Executive Authority
A simple reading of Article 239AA of the Constitution and Section 41 of the 1991 Government of National Capital Territory Act makes it clear that L-G, as the nominee of the President, is the executive authority of Delhi. To make the position clear in simple terms, Article 239AA, which deals with Delhi, falls in Part VIII of the Constitution, the title of which is ‘The Union Territories.’ Two, the Delhi assembly, like the Puducherry assembly, is a creation of Parliament, which can abolish it; state assemblies are a product of the Constitution. And yes, the L-G may not be elected but he is a nominee of an elected government, itself responsible to Parliament.
Globally, national capitals lack full functional autonomy, but as Delhi has shown in the period 1993-2013, you can have functional governments in Delhi delivering on services to its citizens effectively even when opposing parties are in power at the Union and the UT level; think ML Khurana and Narasimha Rao, Sheila Dikshit and AB Vajpayee. The legal position since 1993 remains unchanged. The key lies in the intentions, not in the architecture.
(The writer, a former Principal Secretary to the Government of Delhi, is Director, South Asian Institute for Strategic Affairs.)
Also read:
Elections a ‘Tamasha’ If L-G Has All Power, Writes AAP’s Ashutosh
When Kejriwal Had Come Up With the Noble Idea of a Referendum
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