Who’s Territory, Constitutionally? – The Delhi Debacle

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The promise of full-statehood for Delhi has been on the manifesto of the political parties for a much long time. Delhi was referred to as the Union Territory of Delhi by the Constitution prior to the insertion of Art. 239AA. But due to the questions of administration in the national capital and one of the biggest city in the country, an amendment in the Constitution was made by the 69th Constitution Amendment Act of 1991, to  provide the Union Territory with a Legislative Assembly and thus, providing a special status to the same.

Union Territories come under the administrative head of the President, who is thus, required to appoint an administrator for the territory as prescribed by Art. 239. Lieutenant Governor is one such administrator who is appointed by the President in the National Capital Territory of Delhi. Ironically, as mentioned by Article 239AA (5), the Chief Minister so elected by the legislative members is also to be appointed by the President. The Legislative Assembly formed is similar in structure and in functioning with other States’ Legislative Assemblies, but the powers to legislate have been limited. Expressly, the 1991 Amendment Act took away the rights to legislate on Entries 1, 2 and 18 of the State list being Public Order, Police and Land respectively. Also, it can only legislate on the matters applicable to a Union Territory of the country. The Chief Minister of the quasi-state of Delhi is to be head of the Council of Ministers like any other full-state and also would advise the Lieutenant Governor on the matters concerned. In case of any conflict of opinion between the CM and Lt. Governor, the matter is to be referred to the President and only in the cases of urgency; the Lt. Governor would have the power to go beyond the advice.

So far, the Legislative Assembly and the administrator of the NCT of Delhi are on equal footing. The point to discuss in today’s context is the tussle between Arvind Kejriwal and Najeeb Jung- who has a better title for the appointment of the administrative officers in the Capital? There has been no such tug of war between the legislative and executive since the former has been created by the ’91 Amendment. So what is the matter now? When the ruling AAP came to power in Delhi, it always knew what were the limitations of ruling a quasi-State. So now, alleging the executive should not be the way forward. President, the head of the executive in the country and the father of Union Territories all over the country, administers the matters through the Ministry of Home Affairs. The latest notification of the MHA, defining the powers of both the Legislative Assembly and Lt. Governor clearly stated that the legislature cannot take actions on the appointment of the civil servants. With reference of the Article 239AA (3)(a), it is provided that the law qualifies that it can legislate only to the extent of matter applicable to it. Since the UTs do not have their own State Public Services and State Public Service Commission, the Indian Administrative Services and Indian Police Service personnel appointed are through the UT’s Cadre. The DANICS and DANIPS are also administered by the MHA. Now that since the NCT does not have any applicability on the ‘Services’ as falling under Entry 41, it cannot legislate on it and thus, the executive power to advice the Lt. Governor is gone away with it.

Another Act of the Parliament, the NCT of Delhi Act, 1991 provides with the powers and functions of both the Legislative Assembly and the Lt. Governor. It is quite noticeable that the powers of the Lt. Governor are pretty similar to the powers of the Governor of any State. He can address and send the messages to the assembly, at the commencement of the Assembly, he has to give a special address and others. But Section 41 of the Act which is headed as ‘Matters in which Lieutenant Governor to act in his discretion’ creates the difference. It clearly states that the administrator can act on his own discretion when the assembly does not have any competence in the matter. If there is still a question as to whether the matter falls within the competence of the assembly, in accordance with clause (3), the decision made by the Lt. Governor shall be final. Now, considering the appointment case with respect to the Act, still the decision on the appointments made by the Lt. Governor would prevail over the advice as made by the Council of Ministers.

The promise of full-statehood to Delhi seems to be a distant dream. Being the capital of the country, the home to the offices of the Central Government, the President, the Supreme Court, the Embassies of the other countries, should it be given the status of a State, is of the essence. To a normal eye, any country with the capital being not in governance of the Central government is not visible. Capital of the nation should be in the administrative competence of the Central government.

Presently, the structure of the Government of the NCT of Delhi though being complex is sophisticated. But the contention of the Chief Minister of Delhi should also not be disregarded. He has a right to form a team which suits him the best, but it should always be within the Constitutional structure. The tussle between the head of the CoM and the Lt. Governor is not a healthy sign and the administration should always be done in a friendly manner, or else, it would not serve the purpose of making the structure sophisticated.

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