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Constitutional friction over Delhi is a sign of India’s incomplete federalism

Is Delhi a state or just a union territory? Or is it a state with the characteristics of a union territory or a union territory which acts like a state? Are “State” and “Union Territory” two separate categories or just the ends of a spectrum?

If you have been following the news for the last three years, then you are aware that the courts are grappling with these questions in the context of various issues of governance in Delhi. The specific trigger was that for the first time in ever, the National Capital Territory of Delhi and the Union government are being ruled by different parties, both of which enjoy full majorities in their respective legislatures.

Arvind Kejriwal, the Chief Minister of Delhi, with Narendra Modi, the Prime Minister of India. Source: PIB

The source of the friction has been political and personal – both the current Chief Minister of Delhi and the Prime Minister of India are not known to compromise, or at least not be seen to do so in public. At the same time, they have also promised and tried to implement vastly different models of development and governance. It is, as they see it, a zero-sum game – the success of one necessarily precludes the success of the other.

However, what causes the maximum source of friction is a problematic part of our constitution that has much to do with our federalism and why I think it our federalism remains an “incomplete” one.

The princely state of Delhi?

The ongoing Constitution Bench hearing between the Union government and the Delhi government has everything to do with the interpretation of Article 239AA, and specifically, Clause (4) of this Article. Although the chapter relates to union territories, unlike every other union territory, and like all states, Delhi’s legislature has plenary legislative power. However, unlike every other state, the Union Parliament can also make laws for Delhi in respect of every subject under the “State List”. Delhi, thus has no “State List” but a very large “Concurrent List”. Like every other state. Delhi’s laws in the concurrent and state list can prevail over Union laws if the President assents, but financially, Delhi has no entitlement to receive a share in Union taxes in accordance with the Finance Commission’s recommendations.

Is Delhi therefore more like a State or a Union Territory?

The answer has eluded us and the 69th Amendment which inserted Article 239AA in 1991, is not exactly a model of clear drafting. If it were a state, Delhi would be the 19th largest one by population, and though almost entirely urban, cannot be governed only at a purely municipal level. It would be ridiculous for the Union Government to try and handle all the municipal issues for Delhi but here we are, in a tug of war between the Union and the Delhi governments over who really runs the capital.

Clause (4) of Article 239AA causes one further complication and really goes to the heart of this debate. This provision creates the Council of Ministers and the post of a Chief Minister of Delhi, fixes a maximum strength for the Council of Ministers and like all other states, mandates that the Council of Ministers shall aid and advice the Lieutenant Governor of Delhi. So far so good. The problem comes with the proviso – where the Lieutenant Governor and the Government have a “difference of opinion” on any issue, the former can refer it to the President for his decision on who is right.

Anil Baijal, the Lt. Governor of Delhi, with M. Venkaiah Naidu, the Vice President of India. Source: PIB

This provision has no other equivalent in the constitution, either for the States or for Union Territories. On the face of it, the interpretation of this provision will have a bearing on the future of Delhi alone. If, as the Delhi High Court held, the Lieutenant Governor is free to discard the advice of Council of Ministers as he deems fit, then what of the elections to the Delhi Assembly and accountability to the public of Delhi? If on the other hand, the Lieutenant Governor is to be considered like just another Governor of a State, would that not have the effect of effacing the proviso altogether?

I’ve said before that the interpretation of the Delhi High Court is one that effectively creates a princely state in Delhi, where the Lieutenant Governor is both ruler and resident and the democratically elected legislators and ministers, just advisors. This is an untenable interpretation going against the constitutional values of federalism and democracy. I would argue that the Supreme Court should interpret the proviso to mean that “difference of opinion” can only relate to conflict between the decisions of the Union and Delhi Governments. This means that only where the decision of the Delhi Government is contrary to any Union law or decision, or where the Delhi Government’s acts are patently illegal, the Lieutenant Governor should refer the matter to the President, with reasons as to why he believes the decision is contrary to the Union Government’s laws and decision. What I propose therefore is a modified version of the Bommai test for the Lieutenant Governor – objectivity in reasoning and judicially reviewable decisions. The Lieutenant Governor cannot be given absolute discretion in differing with the Delhi Government.

That, however, only addresses the problem of the present case. The structure and intent of Article 239AA must be re-thought. A city the size of Delhi, with the kinds of problems it has and the multiplicity of agencies which need to be negotiated, needs a clearer division of powers. No one is suggesting that the New Delhi Municipal Council area or the Delhi Cantonment Board come under the direct jurisdiction of the Delhi Government. Rather, the powers of the Union, the Delhi Government, and the municipalities need to be redistributed such that Delhi enjoys all the powers and privileges of State under the Indian Constitution, without impeding municipal administration or the Union government.

Deeper federalism

This also calls, I think, for completing the process of the re-haul of India’s governance structure that was begun with the 73rd and 74th Amendments to the Constitution. Why these reforms (and by extension, India’s federalism) are incomplete is because they leave it to the states to devolve powers to panchayati raj institutions and urban local bodies – a task that most states have been reluctant to do. The battle that is playing out between the Union and the Delhi governments happens at a low-key level across the country between the state and municipal governments as elections are delayed, powers curbed, and interference institutionalised all for considerations of partisan politics.

Federalism is more than just an administrative exercise in division of powers between different authorities. In India, it is a recognition and acceptance of the fact that large, multi-ethnic and diverse countries cannot sustainably be ruled in just one way. A distant government in a far-off capital cannot possibly hope to be democratic and responsive to all corners and sections of the country. As the country’s size and complexity has grown over the years, does it not make sense therefore that India’s federalism also needs to deepen to meet the challenges of governance?

 Alok Prasanna Kumar is a Senior Resident Fellow of the Vidhi Centre for Legal Policy and heads its Bengaluru office.



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