Even as Delhi High Court on Thursday decided that the Aam Aadmi Party (AAP) is ruling a Union Territory and not a full state, the final word on the powers and duties of the Delhi government remains awaited. In the mean time, the tussle between the BJP-led central government and Arvind Kejriwal’s government, with L-G Najeeb Jung acting as the eyes and ears of the Centre, can only become more bitter.
While almost all parties, BJP included, have repeatedly promised full statehood for Delhi, there are no signs of the promise being translated into constitutional mandate. In effect, Delhi continues to be in Schedule I of the Constitution along with other Union Territories (UTs).
First the facts.
Articles 239 and 239AA of the Constitution, as well as the Government of National Capital Territory of Delhi Act, 1991, clearly say that Delhi is a UT, albeit with an Assembly. Puducherry is in the same boat.
Even the High Court in its judgment has pointed to the fact that even after the Constitution (69th Amendment) Act, 1991, which inserted Article 239AA providing for special provisions for the NCT of Delhi, Delhi remains a UT, and is not like a full state.
Secondly, when he led his party to power in Delhi, Arvind Kejriwal knew what he was getting into — that he would essentially be heading a government shorn of the powers that other Chief Ministers enjoy.
What he may not have bargained for, however, is the adversarial actions of the central government — a pushback, possibly, against the confrontationist positions he has himself repeatedly adopted.
Under the constitutional scheme, the Delhi Assembly has the power to legislate on all subjects except subjects like law and order and land. But its power is not absolute, or clearly defined as in full states. Forget the division of power to legislate enunciated by the Constitution under the Seventh Schedule — which deals with subjects under the Central, State and Concurrent Lists — in the case of Delhi (and Puducherry), the law made by Parliament on any matter prevails, even if the state Assembly passes another law on the same subject.
But even a careful reading of Article 239 AA isn’t enough to clear the ambiguity over how much power the government of the NCT of Delhi actually has.
The Transaction of Business of the Government of NCTD Rules, 1993, too has much scope for misunderstanding and misrepresentation. These Rules, among other things, grant too much discretion to the L-G to interfere and, if he so wants, impede the functioning of the Delhi government on every issue. The Rules also provide that in cases where he is unsure of what his stand should be, the L-G is duty-bound to consult the central government through the Union Ministry of Home Affairs “before exercising his powers or discharging his functions in respect of that matter”.
One does not have to be a rocket scientist to guess what directions an L-G is likely to receive from a Centre that appears bent on settling political scores with a duly-elected government in Delhi.
Rule 45 of Chapter VI of the Transaction of Business of the Government of NCTD Rules, 1993, which deals with the subject of how the L-G would deal with matters within the ambit of his “Executive Functions” — such as public order, police and land — says he has to exercise his powers “in consultation with the Chief Minister”, if it is so provided under any order issued by the President under Article 239.
But there is a caveat to this seeming concession granted to the Chief Minister: in case the L-G and the CM are not on the same page, the L-G can seek the view of the Council of Ministers. It doesn’t stop at that — in case the Council of Ministers also doesn’t toe his line, the L-G can refer the issue to the Centre for “the decision of the President” and he is bound to “act according to the decision of the President”.
The President is bound to act on the aid and advice of the Union Council of Ministers — and his decision would be predictable in cases where the state and central governments differ. This is easier to understand when one sees the same Rules also talk of the L-G making a “prior reference” and keeping a matter undecided if it has been referred to the central government.
The predominant view of legal experts is that the Constitution grants very limited powers to the Delhi government. However, many experts, including jurist Soli Sorabjee, have opined that certain provisions of the Transaction of Business of the Government of NCTD Rules, 1993, are unconstitutional. With the Supreme Court scheduled to hear the original suit filed by the AAP government, asking the SC to decide issues concerning the UT-State which are federal in nature, the issue of constitutionality of the controversial clauses of the Rules will also be raised. Since politics, as always, continues to determine the stand of both the AAP government and the BJP-led Centre — with the L-G siding with the Centre, on questions pertaining to powers of the Delhi government — the time has come for the highest court of the land to finally settle the argument.
Incidentally, for those who point to the “good relations” that the previous Congress and BJP governments in Delhi supposedly shared with governments at the Centre headed by their political rivals, here is a factoid: when the Atal Bihari Vajpayee-led NDA government introduced Clause 55 (the ‘prior reference’ clause), the then Sheila Dikshit-led Congress government opposed it strongly.