National Capital Territory (NCT) of Delhi has a “special status” and is not a “full state” and neither just a Union Territory. After Constitution 69th Amendment Act, 1991 came into force, followed by the Government of National Capital Territory of Delhi (GNCTD) Act, 1991 the Union territory of Delhi officially became the National Capital Territory of Delhi. Delhi has an entire article dedicated to it: 239AA (special provisions with respect to Delhi) and 239AB (provision in case of failure of constitutional machinery), which sets up a complicated legal structure defining how governance is to be carried out in Delhi.
This legal structure envisages two constitutional authorities:
- The elected Chief Minister of Delhi, at the head of the Council of Ministers, which has the power to formulate laws on all matters mentioned in the State and Concurrent Lists of Seventh Schedule, except matters pertaining to: Police, Law and order, Municipal services, Land and Jurisdiction of courts.
- Lieutenant Governor (LG), appointee of the Central Government, governs the matters which are not prerogative of the Government of Delhi and these are :
- Law and order,
- Municipal services like water, drainage, electricity, transport etc.
- Jurisdiction of courts
- LG is supposed to act on the aid and advice of the Chief Minister and his council of Ministers. In the case of conflict between the two, the matter is to be laid before the President of India.
- Central government handles a variety of issues across a number of departments.
- Municipal corporations of East, North and South, and New Delhi Municipal Council (NDMC), Delhi Cantonment Board and Delhi Development Authority (DDA) also handle matters assigned to them
- An order issued by the Union Home Ministry in May 2015 ruled that LG would have complete control over the Department of Services, which decides the appointments and transfers of all officers of the Delhi government, including Indian Administrative Service (IAS) officers.
The demand for full statehood for Delhi has been around for many years now, but after the Aam Aadmi Party came to power the constitutional tussle between the two tiers of government has become an acrimonious battle between Delhi Chief Minister Arvind Kejriwal and LG of Delhi Anil Baijal (and his predecessor Najeeb Jung) representative of the Centre.
Chief Justice of India Dipak Misra adhered to the nine-judge Bench judgment of the Supreme Court in the NDMC versus State of Punjab to conclude that Delhi is not a ‘State’, while delivering a verdict on Wednesday July 4, 2018, in NCT of Delhi v Union of India: “Working a Democratic Constitution”.
Justice Chandrachud, one of the five-judges of the Constitution Bench of the Supreme Court in the above NCT of Delhi v Union of India case observed, agreeing with the CJI that a “mixed balance” has to be struck considering the special status of the Delhi and “fundamental concerns” as Delhi is the National Capital.
- CJI in his leading opinion for the Bench, reproduced excerpts from the 1987 Balakrishnan report, which said, “Delhi as the national capital belongs to the nation as a whole.”
- That Control of the Union over Delhi is vital in the national interest ’‘Lieutenant-Governor has free hand in judicial, quasi-judicial functions’‘
- Administrator has to be more active than the Governor of a State.
- The report had envisaged that Delhi could not have a situation in which the national capital had “two governments run by different political parties.
- Such conflicts may, at times, prejudice the national interest.”
- The report foresaw that if Delhi becomes a full-fledged State, there would be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi.
- Parliament would have limited legislative access and that too only in special and emergency situations.
- The Union would be unable to discharge its “special responsibilities in relation to the national capital as well as to the nation itself”.
- The report said the LG’s role was not that of a Constitutional figurehead, though the ultimate responsibility for good administration of Delhi was vested in the President acting through the Administrator.
- However, the Administrator had to take a somewhat more active part in the administration than the Governor of a State.
- Hence, differences of opinion would arise between the LG and the elected government.
- The report had recommended that the “best way” of doing this is to let the LG refer such differences of opinion to the President for a final decision.
Delhi has not been given the status of a full State despite persistent demands due to the most intractable issue of problem of having two governments in the same City-State. In the constitutional scheme, law and order, security and land are State subjects. No Central government can afford to leave these critical issues to someone else in a city from which it is also functioning.
- The issue involves safety of many entities organically linked to it, especially the Embassies which are protected by treaties and conventions and are given immunity in various respects.
- The issue of security of the visiting heads of states and other dignitaries. This is a major responsibility of the Centre and cannot be given to another entity.
- Security involves the Central government and its personnel as well as various subordinate organisations like the Central police forces, offices of agencies like the Union Public Service Commission, the Comptroller and Auditor General of India and the Central Vigilance Commission.
- Security to the Supreme Court and its judges.
- Two Houses of Parliament and MPs also look to the Central government for security.
- Red Fort, where the Prime Minister takes the Independence Day salute, and
- Palam, where most of the foreign dignitaries land.
Then there are the Administrative problems, which will be difficult to resolve. The most important one is of policing and law and order, such as to stop processions going to Parliament or to the Prime Minister’s house. It will have to be done outside the jurisdiction of NCT of Delhi, otherwise that will create numerous problems of coordination. So will other problems of division of water, power, and of drainage and roads. As such Delhi will have to remain as it is.