The Union versus Delhi, Act II, Scene 1

Act 2, Scene 1 of the Delhi vs the Union saga was unveiled by the home ministry, by introducing a bill to amend the Government of National Capital Territory (NCT) of Delhi Act, 1991. The explicit objective, in the statement of objects and reasons, is to give “effect” to the 2018 judgment of a five-judge constitutional bench of the Supreme Court (SC), on the structure of governance in NCT. The implicit purpose is to nullify it. In doing so, it also renders the 69th amendment to the Constitution, which established Delhi as a Union Territory (UT) with a legislative assembly, infructuous.

This bill, despite its stated objective, represents yet another step toward centralising India’s federal polity. If passed, it will not only sharpen the political battle between the elected government of Delhi and the Union government, but also deepen the fault lines in India’s fragile federal compact.

Three amendments in the bill are noteworthy. First, it defines the term “government” in the context of laws made by the legislative assembly to be the Lieutenant-Governor (L-G) of Delhi, not the elected government. Second, it expands L-G’s powers by requiring the elected government to seek L-G’s opinion, on specific matters. It is left to L-G to define these “matters” through a general or specific order. Third, it weakens the powers of the assembly by prohibiting it from making rules for its committees on day-to-day administration.

These provisions contradict the 2018 judgment, which unambiguously clarifies that the council of ministers with the chief minister at its helm is the executive head of the government of Delhi. By conflating the government of Delhi with L-G, the bill blurs the distinction between the elected government and L-G. Further, by requiring L-G’s opinion before the elected government can take executive action, it effectively renders the elected government powerless. This is in direct contravention of the 2018 judgment, which decided that “requiring prior concurrence with the L-G would negate the ideals of representative governance and democracy”, thus undermining the spirit of the 69th constitutional amendment. The playbook is familiar. This is precisely how Article 370 was nullified — by interpreting the definition of government as the governor and not the elected state legislature, thus ushering in central control.

At the heart of this quagmire is a fundamental federal question — is the presence of a strong sub-national government with full powers, within the geographical area of the seat of the national government, incompatible with national interest? The Balakrishnan Committee argued that as the national Capital, Delhi belongs to the nation and, therefore, cannot be given full statehood. Delhi’s unique status as a UT with a legislative assembly was the unwieldy outcome.

However, global experience shows that several large megapolises around the globe, from Jakarta and Seoul to London and Paris, have had strong sub-national governments, whose mayors have gone on to become heads of government, without compromising national interest. Even countries such as Australia and the United States that have chosen a more restricted form of sub-national government have not had trouble in appropriately delineating powers in ways that enable the harmonious construction of responsibilities. Indeed over time, as Niranjan Sahoo has highlighted in this newspaper, the trend has moved towards allocating greater powers to city governments. Subsidiarity — the foundational principle of fiscal federalism — necessitates empowered sub-national governments.

The challenge of governing Delhi is thus not one of first principles. Rather, it is one of politics. The degree of sobriety, political maturity and commitment to the federal principle that is necessary for a harmonious construction of responsibilities is lacking in India. Let us not forget that the Aam Aadmi Party (AAP), which is today contesting this blatant effort to divest its powers as an elected government, vocally supported the move to convert a full-fledged state into a UT through the deployment of the very same tactics. Genuine federalism has very few takers in our political culture today. Indeed, given our politics, it would appear that the concept of a UT with a legislature is oxymoronic.

If passed, there is every likelihood that a legal challenge will be mounted. But SC is yet to make a determination on the constitutionality of the Union government acting to transform a state into a UT. It would seem unlikely, thus, that it would act with alacrity, when just the form of a UT is being changed.

So the question before us is this. Shall we keep idealistically striving to create a more perfect Union or shall we resign ourselves to realistically accept the situation as it exists today? If diminution of states is constitutionally permissible, then perhaps one should (only half in jest) start thinking about electing L-G directly. It can even be a pilot for an eventual transition to a presidential system, in a world where states are remade as UTs. But is this what our Constitution envisages? Even more than the courts, this is a question for our political parties to answer.

Yamini Aiyar and Partha Mukhopadhyay are with the Centre for Policy Research

The views expressed are personal