The trigger for the current confrontation between Delhi’s Lieutenant Governor Anil Baijal and the Aam Aadmi Party is the May 21, 2015, notification of the Union Home Ministry. That set into motion a chain of events culminating in Chief Minister Arvind Kejriwal demanding full statehood for Delhi, a demand that both the Bharatiya Janata Party and the Congress have voiced for decades.
The May 21, 2015, notification superseded the one of September 24, 1998, which had made it mandatory for the Lieutenant Governor to consult the chief minister not only with regard to reserved subjects of police, public order and land, but also for services – legalese for the bureaucracy. Under Article 239AA, which was inserted by the Constitution (69th Amendment) Act, 1991, to create Delhi’s framework for governance, the chief minister does not have executive power over the three reserved subjects.
The 2015 notification, however, left it to the Lieutenant Governor to decide whether to consult the chief minister on the three reserved subjects and services. Since the 1998 notification was issued by the BJP-led National Democratic Alliance of Atal Bihari Vajpayee, when the BJP was also heading the state government in Delhi, the 2015 notification conveyed the impression that the Narendra Modi government was striking a different tune only because AAP was in the saddle in Delhi.
In effect, the 2015 notification deprived Kejriwal of even a modicum of control over bureaucrats, on whom the implementation of policies depend. Stung, the AAP government appealed to the Delhi High Court against the notification. But Chief Justice G Rohini and Justice Jayant Nath, in their judgement of 2016, not only upheld the 2015 notification, they also declared that the Lieutenant Governor was not bound by the aid and advice of the Council of Ministers on all matters, contrary to the dominant reading of Article 239AA of the Constitution till then.
The judgement was a slide back into time.
Delhi and statehood
In 1952, Delhi belonged to the category of Part C states (the Constitution of India recognised three types of states – Part A, Part B and Part C), and had a Legislative Assembly and a chief minister. Then too, the chief minister did not have control over the police, including the Railway Police, land and buildings, but also over public utilities, sanitation, water supply and so on. Following the reorganisation of states, Delhi was declared a Union Territory in 1956, and its Assembly and the post of chief minister were scrapped. The Chief Commissioner became the sole overseer of Delhi’s governance.
In 1966, the Chief Commissioner was styled Lieutenant Governor, and a Metropolitan Council and an Executive Council was added to the structure of governance. The Metropolitan Council could not legislate on its own, but only make recommendations. Likewise, the aid and advice of the Executive Council, whose four members belonged to the Metropolitan Council, was not binding on the Lieutenant Governor.
Since Delhi’s administrative structure did not reflect the popular will, two bills were introduced in the Lok Sabha in 1977. These sought to amend the Constitution to give the Union Territory of Delhi a legislative Assembly. But the bills lapsed. In 1990, Home Minister Mufti Mohammad Sayeed introduced the Constitution (72nd Amendment) Bill to grant statehood to Delhi, which was to be called the Capital State of Delhi. This bill too lapsed.
Under the 1990 Bill, police and public order were to be outside the purview of the proposed Delhi Assembly. Also the governor’s approval was made mandatory for any measure that the Capital State of Delhi took on the provision of municipal services needed by the Union government, and on any matter pertaining to the Delhi Urban Arts Commission and the Delhi Master Plan.
Finally, through the 69th Constitution Amendment Act, 1991, Delhi got a popularly elected Assembly and a chief minister.
Clearly then, the Delhi High Court’s 2016 judgement is against the years of endeavour to make Delhi’s governance reflect the popular will. With the chief minister’s advice no longer binding on the Lieutenant Governor, even on matters not reserved for the governor, the AAP government’s status, in many ways, becomes similar to that of the Executive Council of 1966.
This is because the High Court judgement has given the Lieutenant Governor the scope not to exercise an option available under Article 239AA, which says that in case of a difference of opinion with ministers, the Lieutenant Governor shall refer the issue to the President of India for a decision. Baijal has instead chosen to return files to the Delhi ministers for clarifications, with suggestions, and has asked them to consult departments supposedly working under them. His style has delayed or nixed more than 30 projects of the AAP government, an account of which is detailed in Deputy Chief Minister Manish Sisodia’s Outcome Report to the Delhi Assembly in April.
The Lieutenant Governor is effectively the Delhi government now. It is to wrest back the powers that he has usurped because of the 2015 notification and the 2016 High Court judgement that Kejriwal has demanded full statehood for Delhi. Kejriwal’s demand echoes the concerted attempt both the BJP and the Congress made in this direction in 2003.
On August 18, 2003, Home Minister LK Advani, moved in the Lok Sabha the Constitution (102nd Amendment) Bill, 2003, and the State of Delhi Bill, 2003. Both these were referred to the Parliamentary Standing Committee on Home Affairs, which was chaired by Pranab Mukherjee, then a senior Congress leader. The amendment bill sought to delete Article 239AA and Article 239AB of the Constitution, and mention Delhi as a state in the explanation to Article 54, which deals with the election of the President.
The Standing Committee’s 106th report reveals the politics behind the statehood demand. It cited the Home Ministry’s background note declaring that the Delhi Assembly lacked “legislative sovereignty” because the existing constitutional arrangement enabled the “Central Government to exercise overriding control” over the Legislative Assembly on matters not even reserved.
Back in 1998, it was because of this anomaly that the Central government prepared a draft Delhi Reorganisation Bill. It split from Delhi certain areas that were to be centrally administered, and the larger remaining portion that was to be granted full statehood. This Bill was sent to the Delhi government for comments. Thereafter, in September 2002, Sheila Dikshit, then the chief minister, forwarded a Delhi Assembly resolution asking for full statehood for Delhi.
The State of Delhi Bill, 2003, sought to insert into the Constitution Article 371J, which vested in Parliament the power to make laws on public order and police for the entire state, and local government (municipality) and land for the area under the New Delhi Municipal Council, popularly referred to as Lutyens Delhi.
The standing committee endorsed statehood for Delhi, and had problems with the Bill on only two counts. To protect the Union government’s interests, the 2003 Bill entitled the “President to give direction to the State of Delhi for good governance and proper development of the State.” Such a direction was to be binding on the Delhi government.
But this provision came under the scathing criticism of the standing committee: “It was…felt that expressions like ‘good governance’ and ‘proper development’…were not only ambiguous but also variable concepts. It was apprehended that such overriding and sweeping powers may be used by the Union government as a ploy to destabilise the elected government of Delhi.” It consequently wanted the State of Delhi to be insulated from the pressure tactics of the Centre beyond even what the Bill had provided for.
A look at other capitals
To ensure that the interests of India’s national Capital were not undermined because of the grant of statehood to Delhi, the committee studied the model of governance in Washington DC, the capital of the US, and Canberra, the capital of Australia.
The committee concluded that Washington’s status approximated to that of India’s Union Territory. It is not part of any state; it is built on land donated by other states; it has the attributes of a state but no sovereignty. Its legislative powers can also be exercised by the Congress, the equivalent of Indian Parliament. A federal planning agency ensures its historical and natural features are preserved.
By contrast, Canberra’s status was that of an Indian state. Yet its identity as the national capital has been preserved because it is known as the Australian Capital Territory. It has a chief minister and a legislative Assembly. But the federal government’s interest is protected through the National Capital Authority, which develops and preserves Canberra’s heritage.
The committee thought Delhi conformed to neither models. The committee was essentially worried about Delhi’s identity as the national Capital, which it thought could not be preserved just because the 2003 Bill vested some powers in Parliament, not in the Delhi Assembly. Since the 2003 Bill included New Delhi within the contemplated Delhi state, the committee said it was not possible to implement the views of those who suggested that the New Delhi Municipal Council area should be renamed as National Capital Territory.
The committee said it preferred the nomenclature of Capital State of Delhi, which the lapsed 72nd Amendment Bill, 1990, had used. It proposed, therefore, to rename the National Capital Territory of Delhi, coined in 1991, as National Capital State of Delhi. It will “reinforce the fact that Delhi is first and foremost the Capital of India and then a state,” the committee explained.
This bill too lapsed as the Vajpayee government advanced the Lok Sabha election. Nevertheless, it is upon this long history that Kejriwal has built his idea of full statehood for Delhi. He wants, however, police and land to be a reserved subject only for Lutyens Delhi, with the state government having control over them for the rest of the state. Perhaps Dikshit did not pursue the idea of statehood as a friendly Congress-led United Progressive Alliance came to power at the Centre in May 2004, and her autonomy was therefore unlikely to be restricted.
But the bruising battle in Delhi could further intensify from July onward. This is because the AAP government went in appeal against the 2016 High Court judgement to the Supreme Court, which completed the final hearing in the case in December. Six months have elapsed since then, but the five-member Constitution bench, which is headed by Chief Justice Dipak Misra, is yet to deliver the judgement. The judgement will leave one party – the Centre or the state – dissatisfied.
If it is the state government that is left dissatisfied, the demand for full statehood for Delhi will only escalate. Given their past positions, the BJP and the Congress can only be hypocritical in opposing it.