Centre must re-think response to Delhi authority

The bewildering variety of India’s constituent units, in terms of size, political and cultural traditions etc, persuade the Constitution makers to devise a system which left room for each to practise democracy in a manner that suits its circumstance best.

After a process of consolidation, which was completed in stages, now there are 28 states and eight Union Territories. One of the UTs is Jammu and Kashmir, a full-fledged state which the Modi regime reduced to the status of UT to facilitate abolition of the special status it had under the Constitution. At that time, the Centre had said J and K’s statehood would be restored. However, it has taken no step in this regard so far.

All UTs are not on an equal footing. For instance, Delhi’s Lieutenant-Governor has more powers than other L-Gs. He has “executive functions” that allow him to exercise his powers in matters connected to public order, police and land in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution. Delhi is where the government of India has its seat. It was earlier a Union Territory. Now it is supposed to be a State but all the UT structures are still in position. It has an elected Assembly, and an elected government accountable to it. But, unlike the other states, Delhi state has no power over the police force operating there. The Centre controls it through the L-G.

Obviously, the Centre cannot be at the mercy of the Delhi state government, even when it is an elected one. But must Delhi state be at the mercy of the L-G appointed by the Centre? This issue recently came up before the Supreme Court. A five-judge Constitution Bench, presided over by Chief Justice YV Chandrachud, ruled unanimously in favour of the Delhi state government on the issue of who has control over the bureaucracy in the National Capital Territory (NCT).

It said Delhi’s elected legislature has control over bureaucrats in the administration of services, except in areas outside the legislative powers of the NCT. It identified three areas outside the control of the Delhi state government: public order, police and land.

It said the Delhi state government ought to have control over the services, subject to exclusion of matters which were out of its legislative domain. If the services were excluded from its legislative and executive domain, the ministers and the executive, which are charged with formulating policies in the NCT, would be excluded from controlling the civil service officers who implemented the executive decisions.

The court noted that the question of regulation of services was a major part of the dispute between Delhi’s elected government and the L-G nominated by the Centre.

The issue of the powers of the L-G and the state government came to the fore after the Aam Admi Party seized power in the NCT, defeating the Congress and the Bharatiya Janata Party, and its President, Arvind Kejriwal, became the Chief Minister in 2013. After the BJP came to power at the Centre, tussle between the L-G and the state government became a regular feature.

Five years ago, another Constitution Bench of the court had ruled in favour of the Aam Admi Party-led state government. However, the problem continued.

This time the Centre promulgated an ordinance to nullify the effect of the apex court’s verdict. It set up an Authority, with the Chief Minister as the Chairman and two Central government officers as members, to decide by a majority vote all matters of dispute between the L-G and the elected government.

What the Supreme Court did was to strengthen the democratic element in managing the affairs of Delhi state. What the Centre has come up with is a patently undemocratic formula which will let it use bureaucrats, who are beholden to it, to checkmate Delhi’s elected Chief Minister. It must re-think the matter.