PublicationsAn Analysis of the Friction in the Administrative Governance of Delhi

December 10, 20201
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Note to the Readers

The Constituent Assembly debates, and the Reports of various committees of the Government have been heavily relied upon in the course of the paper. Although not conclusive, these sources are used to understand the intent of the Constitution framers as held in the Kesavanandha Bharati judgment.

INTRODUCTION

Delhi’s status as a Union Territory is sui generis by virtue of it being the national capital. The administration of Delhi is divided between the Centre, acting through the LG, and the Delhi Government. Due to this diarchy, conflict may arise in several instances. The scope of this paper is to understand the nature of this conflict over different administrative areas. It starts with explaining the special status of Delhi and the problems that arise consequently. The aim is to understand the politicization of the ‘constitutional’ discourse over complete Statehood, which is synonymous with the control of the police. The demand for control over Delhi police is recurring one and inherently political, as the constitutional position on the matter is well settled.

DELHI: A STATE OR UNION TERRITORY?

Delhi was a Union Territory[2] until 1992 and it became the National Capital Territory[3] under the Sixty-Ninth Amendment Act, 1991 which inserted Article 239 AA and 239AB[4] that laid down special provisions for its administration, including the appointment of an administrator under Article 239, who would be referred to as the LG and had considerable control over the capital. The amendment reinstated the Legislative Assembly, which had been abolished due to the grant of the ‘UT’ status to Delhi in 1956. The Legislative Assembly was conferred with powers to make laws related to all matters mentioned in the State List, except for Public Order, Police, and Land. Additionally, Article 239 AB empowered the President to order the suspension of Article 239 AA if he deemed necessary for satisfactory administration of Delhi if the constitutional set up failed.

THE POWER TUSSLE BETWEEN THE CM [5]AND THE LIEUTENANT GOVERNOR[6]

There has been constant deliberation upon who exercises greater administrative power over Delhi, the CM, or the LG. This administrative power covers a range of areas. A few of these areas have been discussed in recent judgments of the Delhi High Court and the Supreme Court.

THE HIGH COURT’S OPINION 

In the case of the Government of NCT vs Union of India, the High Court attempted to clarify the division of administrative powers in certain matters in response to several PILs challenging various orders passed by the Governor.[7] The Court upheld Delhi’s status as a UT and declared the LG to be the administrative head of the capital.[8]It held that the LG was not required to act on the advice of the Cabinet concerning matters under Article 239AA 3(a) and mandated that the Council of Ministers intimate the LG of decisions that it takes for matters falling under the clause.[9] The contested areas included the setting up of the Anti-Corruption Bureau, the Commission of Inquiry, appointments, and transfers of officials under the Delhi Electricity Reforms Act, the revision of minimum rates of Agricultural Land under the Indian Stamp Act, and the appointment of the Special Public Prosecutor under Section 24 of the CrPC and the appointments and transfers of bureaucrats under Entry 41 of List II. The Court’s decision largely concentrated powers in the LG’s office and barred the State from exercising powers that were constitutionally conferred upon it.

The judgment had undertones of bias and made the Delhi Government look like an ‘ornament assembly’, leaving it with little control over important administrative matters. However, while giving Delhi partial statehood, the lawmakers intended to allow the people of Delhi to elect their representatives and rule themselves. Unquestionably, the CM appealed against this decision, and a five-judge Supreme Court bench was constituted to hear the case.

THE SUPREME COURT’S OPINION

The Apex Court settled the debate on certain areas of administration of Delhi in two cases, as follows:

July 2018

According to a detailed analysis of arguments from both parties, the Court delivered its conclusions in seriatim. At the outset, it emphasizes the importance of the coexistence of State and Central governments as envisioned by the Constitution. [10] It prompts the parties to recall that the essence of the Constitution promotes federalism and not centralism. Hence, it would be unfair if the LG expropriates all powers from the CM. The decision propounded by the High Court was overturned and the Court held that the LG was merely an administrator and legislative powers to be exercised in NCT could not be concentrated with him. Additionally, the LG is obliged to act upon the aid and advice of the Council of Ministers unless he exercises powers under the proviso to sub-clause 4 of Article 239AA. It is also mandatory that all proposals, as well as decisions taken, are communicated to the LG by the Council of Ministers, not to obtain assent but to keep him acquainted. The Court clarified the position on constitutional issues and passed on discordant issues to a smaller bench. [11]

February 2019

A two-judge bench delivered its judgment upon contested administrative areas. The Court held that the Governor has exclusive powers over the functioning of the Anti-Corruption Bureau and the setting up of the Commission of Inquiry.[12] However, the State had the power to appoint and transfer officials under the Delhi Electricity Reforms Act and appoint the Special Public Prosecutor under Section 24 of the CrPC. The two judges dissented upon the matter of transfer and appointment of ‘services’ and opined that it needed more deliberation.

Contempt of courts

THE CASE OF THE DELHI POLICE

The demand for a shift of control of the Delhi Police from the Centre to the CM has been synonymous with the demand for the grant of complete Statehood.

In the words of the current CM of Delhi, “Delhi is not the property of any individual or party to decide whether it would be given full statehood or not.”[13] One of the contemporary arguments propounded by advocates of full statehood is that it is not fair for unelected bureaucrats to exercise powers over the most crucial matters that affect the daily lives of the people of Delhi.[14] Another argument is that the Centre is not equipped to deal with the local issues of public nuisance.[15] This demand was reiterated a few months ago after the police were highly criticized for not acting swiftly when riots broke out in Delhi in February 2020. The CM expressed that if the control of police was with the State, swift action could have been taken.[16] There have also been instances of assault on the CM and other state functionaries which resulted in the State demanding control of the police. It was suggested that the control over NDMC and the Delhi Cantt area could be retained by the Centre and complete control, including police, public order, and land for remaining areas should be transferred to the State.[17] This proposal has been reiterated by several scholars who view it as a legitimate demand.[18]

However, judicial intervention has never been sought exclusively for the shift of control of the police. A plea for grant of full statehood was extended to the Supreme Court but got rejected on grounds of being ‘infructuous’.[19]

HISTORICAL BACKGROUND

The debate on the administrative restructuring of Delhi has surfaced numerous times throughout history.

Delhi was a State until 1956 but State authorities did not possess powers to make laws regarding police, public order, and land. It was never the intention of the Constitution makers to forego complete Central control of Delhi. [20] In its report in 1955, the State Reorganization Committee discussed why Delhi could not be given complete statehood.[21] This report was released before the Seventh Amendment, which declared Delhi to be a UT. The primary argument extended was that special control of the central government over the federal capital is a global practice. Examples of central control over Paris viz. a viz. other French municipalities, and direct control of the Home Secretary over police administration in metropolitan areas in England were used to substantiate this argument. Another was that the primary reason for shifting the imperial capital Calcutta to Delhi in 1912 was to exclude the seat of the Central Government from the territorial jurisdiction of a provincial government.[22]

However, it was also never the intention of the Constitution makers to deprive the people residing in the national capital of the opportunity to govern themselves. The Delhi Administration Act 1966 substantiates this.[23] The parliamentary debates on the Bill suggest that an elected Municipal Council set up was introduced with the intention of allowing the citizens to have representation in their administration, not to provide them with a fully democratic setup.[24] This set up was in place until the 69th Amendment Act.

The amendment was based on the recommendations of the Balakrishnan Committee, which was set up in 1987 to investigate governance issues in Delhi and provide solutions. The report of the Balakrishnan Committee throws light on all issues that arise in the administration of Delhi.[25] Even prior to the amendment, the control over the police was with the Central Government, acting through the Administrator. The report does not invalidate the self-governance demand of the people of the national capital. It acknowledges that these demands have been consistent globally and states that “a basic conflict of interests between national government’s need to develop the capital as a whole and the local’s desire to have greater autonomy” will always exist.

The 69th amendment introducing Delhi’s special status as the NCT paved way for the formation of Delhi’s Legislative Assembly in 1992.[26] Post the formation of the legislative assembly, the earliest request for full statehood came in 1994 when the CM found himself in conflict with the LG. These requests were followed by similar requests from subsequent CMs.[27] Several bills were introduced over the years but with no effect. In 2003, the Parliamentary Standing Committee on Home Affairs released a report on the administrative situation in Delhi.[28] The report provides an insight into the series of bills demanding statehood and the amendments required to achieve statehood in each bill.

In that regard, it is important to highlight the discussion of the 102nd Amendment Bill, 2003. The bill was introduced with an intention to repeal Articles 239 AA and 239 AB and inserting Article 371J, which would enlist special requirements of the National Capital. In the envisioned ‘national capital’ under the relevant parts of this bill, the Parliament was awarded powers to make laws related to Public Order and Police for all of Delhi and Local government and Land in relation to New Delhi.  Hence, it proposed that the power to make laws for ‘Land’ in the remaining areas of Delhi be conferred upon the State Government. Consequently, the New Delhi area would be designated as the NCT and the remaining area would constitute the State of Delhi. However, this proposition was disdained by the Ministry of Home Affairs, and the need for preserving Delhi’s distinct identity as national capital was emphasized. Several members of the Committee expressed their dissatisfaction with the idea of ‘incomplete’ statehood. They believed that by withholding powers to be exercised over public order and police, the Centre “had proposed a truncated version of Statehood.” The bill was not passed and inadvertently the demand for statehood took a backseat.

CURRENT SCENARIO

Delhi is not a state, it is a UT with a legislature as under Article 1 read with Schedule 1 of the Constitution. Certain important administrative functions in Delhi lie with the State while some lie with the Union, these include Public Order, Police, and Land. These three areas are administered by the Office of Home Affairs through the LG. Any correspondence related to the police is first received by the Additional Chief Secretary of Delhi Home Department and then marked to the Home Ministry of India or the LG.

Being the capital of our country, it should ideally be administered by the central government. The system in place is effective and aligns with administrative setups all over the world, including Kremlin and Washington DC. Capital cities have a history of being governed exclusively by the central government. If the Delhi government had complete control of the state, it would be capable of interfering with the working of representatives of the Centre. Another consequence would arise in case of opposition parties coming into power at the Centre and State level, causing conflict.

The powers of the LG cannot be equated with those of any other Governor. In Delhi, the Centre holds exclusive power over the police and not the elected government of Delhi. The legal position on the division of power between the Centre and the Government of Delhi was clarified in the discussed cases. The conflict that arises over the administration of Delhi is politically motivated.

CONCLUSION

Granting Delhi full statehood would pose a grave administrative challenge due to the federal nature of our constitution.[29] There would be a complete separation of executive and legislative powers between the Union and the Delhi State. As a result, the Parliament would no longer have the power to make laws regarding matters in the State list except in cases of emergency. This prohibition would hinder the Central Government from discharging its special responsibilities towards the capital of the country. By virtue of the importance of Delhi as the national capital, it becomes vulnerable to attempts at overthrowing legitimate Governments. It is also no doubt that due to the nature of it being an important metropolitan city, it is also more susceptible to anti-national or terrorist activities. Several experts have also argued that it is not financially viable to grant Delhi statehood as it would lose the grants of the Central Government and the expenditure to maintain the city by far exceeds the resources raised.

Politicians engaging in debates about statehood appear to be fickle and lack a serious “politics of intent”.[30] The constitutional position on the administration of Delhi has been intensely deliberated on. The lawmakers have granted utmost consideration to the desire of the people of Delhi to govern themselves and the State Governments are aware of this. However, due to opposition parties being in power at the Centre and in the State, the situation has been grossly politicized. The control of police is hotly debated when a situation of unrest arises in Delhi. However, it is a less known fact that the Executive Magistrate appointed under Section 20 of the CrPC has the power to call in the army in situations like the February riots.[31]

The structure of the police forces in London is very diverse and Delhi could perhaps take away from its model for managing a large metropolitan city. There are several police authorities like the Transport police and other police forces that are managed by the Ministry of Defence. However, there are two primary bodies i.e. the Metropolitan Police Force and the City of London Police. The former is under the control of the Home Secretary on whose recommendation the Crown appoints a Commissioner and five Assistant Commissioners while the latter is managed independently by a Commissioner of the City Police who reports to the Court of Common Council and Home Secretary.[32] Similarly, perhaps a viable option to reduce friction between the State and the Union with regard to the administration of Delhi could be providing the state with a special police force that does not have powers equivalent to those of the Delhi police. Hence, this could be a special police force that is managed by the Office of the Chief Minister and works independently of the Delhi police and tends to local issues of public order.

 

REFERENCES-

Books

  1. KP AGRAWAL, DELHI: A ROLE MODEL OF URBAN INDIA PART II 105-106 (Educreation Publishing). rb.gy/cna2fc

Journal Articles

  1. Alok Prasanna Kumar. “Statehood for Delhi“, EPW 14 Jul, 2018 https://jguelibrary.informaticsglobal.com:2123/journal/2018/28/commentary/statehood-delhi.html
  2. Prachi Bhardwaj, Delhi vs Centre: Powers demarcated; Split verdict on power to transfer and appoint officers, SCC Online (Feb., 14 2019), https://www.scconline.com/blog/post/2019/02/14/breaking-delhi-vs-centre-powers-demarcated-split-verdict-on-power-to-transfer-and-appoint-officers/.
  3. Louise Tillin. Statehood and the Politics of Intent, 46 EPW 34, 34–38 (2011) JSTOR, jstor.org/stable/23018211.

Newspaper Articles

  1. India TV News desk, Will show how law & order is maintained if Delhi Police is under us: Kejriwal, INDIA TV, Jan., 2020. https://www.indiatvnews.com/news/india/will-show-how-law-order-is-maintained-if-delhi-police-is-under-us-kejriwal-577341.
  2. PTI, Delhi not the property of individual or party, people will decide on statehood: Kejriwal, BS. Mar., 13, 2019, https://www.business-standard.com/article/pti-stories/delhi-not-property-of-individual-or-party-people-will-decide-on-statehood-kejriwal-119031301123_1.html.
  3. PTI, SC dismisses plea seeking full statehood for Delhi, TH. Oct., 05, 2019, https://www.thehindu.com/news/national/sc-dismisses-plea-seeking-full-statehood-for-delhi/article25135366.ece

Case Laws and Statutes

  1. Constitution (Sixty-Ninth Amendment) Act, 1991, Acts of Parliament 1956 (India). http://legislative.gov.in/constitution-sixty-ninth-amendment-act-1991
  2. Government of NCT of Delhi v Union of India & Anr, (2018) 8 SCC 501 (2017).
  3. Government of NCT of Delhi v. Union of India, 2019 SCC OnLine SC 193
  4. Government of NCT of Delhi) v. Union of India, 2016 SCC OnLine Del 4308.
  5. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
  6. The Criminal Procedure Code, 1973. http://legislative.gov.in/actsofparliamentfromtheyear/code-criminal-procedure-act-1973
  7. The Delhi Administration Act, 1966. http://legislative.gov.in/sites/default/files/legislative_references/1966.pdf

Government Reports

  1. Department-Related Parliamentary Standing Committee on Home Affairs, One Hundred-sixth Report on The Constitution (One hundred and second amendment) Bill, 2003 & The state of Delhi Bill, 2003, (June 1, 2020), http://164.100.47.5/rs/book2/reports/home_aff/106threport.htm.
  2. Delhi Legislative Assembly, Government Resolutions (Under Rule-90), 2018 http://delhiassembly.nic.in/Resolutions/GovtResln.htm.
  3. Report of the States Reorganisation Commission, 1955, (India).
  4. Constituent Assembly of India, Report of the Drafting Committee, 1947, (India).

Parliamentary Debates 

  1. Parliamentary Debates, Government of Part C States Bill, 1951, (India).
  2. Parliamentary Debates, Delhi Administration Bill, 1966 (India).

[1] Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225

[2] Hereinafter, UT

[3] Hereinafter, NCT

[4] The Constitution (Sixty-Ninth Amendment) Act, 1991, Acts of Parliament 1956 (India).

[5] Hereinafter, CM

[6] Hereinafter, LG

[7] Government of NCT of Delhi v. Union of India, 2016 SCC OnLine Del 4308.

[8] Ibid.

[9] Ibid.

[10] Government of NCT of Delhi v Union of India & Another, (2018) 8 S.C.C. 501 (2017).

[11] Ibid.

[12] Government of NCT of Delhi v. Union of India, 2019 SCC OnLine SC 193

[13] PTI, Delhi not the property of individual or party, people will decide on statehood: Kejriwal, BS. Mar., 13, 2019, https://www.business-standard.com/article/pti-stories/delhi-not-property-of-individual-or-party-people-will-decide-on-statehood-kejriwal-119031301123_1.html.

[14] Aam Aadmi Party. “Statehood for Delhi” (2019). https://aamaadmiparty.org/statehood-for-delhi/.

[15] Committee on Reorganisation of Delhi Set Up Report. 1989. (India).

[16] India TV News desk, Will show how law & order is maintained if Delhi Police is under us: Kejriwal, INDIA TV, Jan., 2020. https://www.indiatvnews.com/news/india/will-show-how-law-order-is-maintained-if-delhi-police-is-under-us-kejriwal-577341.

[17] Delhi Legislative Assembly, Government Resolutions (Under Rule-90), 2018 http://delhiassembly.nic.in/Resolutions/GovtResln.htm.

[18] Alok Prasanna Kumar. “Statehood for Delhi“, EPW 14 Jul, 2018 https://jguelibrary.informaticsglobal.com:2123/journal/2018/28/commentary/statehood-delhi.html.

[19] PTI, SC dismisses plea seeking full statehood for Delhi, TH. Oct. 05, 2019, https://www.thehindu.com/news/national/sc-dismisses-plea-seeking-full-statehood-for-delhi/article25135366.ece.

[20] This is resonated in the Report of the Drafting Committee presented before the Constituent Assembly on August 29,1947, and the Parliamentary debates on the ‘Government of Part C States Bill on 3rd September 1951. Constituent Assembly of India, Report of the Drafting Committee, 1947, (India).; Parliamentary debates, Government of Part C States Bill, 1951, (India).

[21] Report of the States Reorganisation Commission, 1955, (India).

[22] Ibid.

[23] Delhi Administration Act. 1966, available at: http://legislative.gov.in/sites/default/files/legislative_references/1966.pdf

[24]Parliamentary Debates, Delhi Administration Bill, (India) 1966.

[25] supra note 21

[26] supra note 4

[27] In a document named ‘Primer on Full Statehood’, the AAP has mentioned 12 incidents where demand for statehood was spoken of by BJP leaders and 5 instances where the demand was put forward by INC leaders. Dr.KP AGRAWAL, DELHI: A ROLE MODEL OF URBAN INDIA PART II 105-106 (Educreation Publishing). rb.gy/cna2fc

[28] Department-Related Parliamentary Standing Committee on Home Affairs, One Hundred-sixth Report on The Constitution (One hundred and second amendment) Bill, 2003 & The state of Delhi Bill, 2003, (June 1, 2020), http://164.100.47.5/rs/book2/reports/home_aff/106threport.htm.

[29] supra note 21

[30] Louise Tillin. Statehood and the Politics of Intent, 46 EPW 34, 34–38 (2011) JSTOR, www.jstor.org/stable/23018211.

[31] The Criminal Procedure Code, 1973, available at: http://legislative.gov.in/actsofparliamentfromtheyear/code-criminal-procedure-act-1973

[32] supra note 21

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AUTHOR DETAILS
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Name: Aastha Sood

Affiliation: 4th Year Law Candidate, Jindal Global Law School, Sonipat

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Mahima Gemini
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Well deciphered details astha 👏.
Full statehood will definitely bring better opportunities for the residents of Delhi and financial increments for the government’s budget but not without its own share of responsibilities like provision of top security infrastructure for law & order and internal security
But as well from the point of view of the citizens of Delhi, what matters is that systems are transparent and day-to-day work is attended to. This does not need statehood—only good governance…

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