Anil Anand
Aam Aadmi Party supremo and Delhi Chief Minister Arvind Kejriwal has been fighting a protracted battle for a systemic change both in the models of governance and politics ever since he came to power with a stupendous majority. Definitely, his battle has some merit but where it sometimes seems erring is the strong element of politics which he attaches to it.
The recent Delhi High Court verdict defining afresh the division of power between Lt Governor and the Chief Minister and rightly taking a decision in conformity with the Constitutional provisions, has also at the same time added a new dimension to the ongoing debate on the status of Delhi particularly a democratically elected Government. The vital question arising after the Court verdict that vindicated the Lt Governor’s Constitutional superiority under the current scheme of things is that where does an elected Government really stand or justification behind holding elections or the very existence of an Assembly.
At this juncture it is significant to understand the constitutional reasoning behind the Court’s August 4, 2016 order which states that the National Capital Territory is a Union Territory (UT) and that the Lt Governor is its administrative head. The fact that the order has confined itself to the limited question of powers of the Lt Governor and the Chief Minister, it has become imperative that an appropriate authority fully define Delhi’s status and clarify on grey areas, which are the current causes of confusion. In this case it is Supreme Court where the matter is pending.
Kejriwal is a shrewd politician and at the same time man in a hurry. It is amply clear that he is not prepared to follow beaten tracks and conventional routes for redressal of a Constitutional question as is the case with Delhi statehood. It seems he finds the conventional route time consuming and delivering little political mileage and at the same time misfit with his out-of-the-box thinking.
It is also in line with his this thinking that Kejriwal has not even once raised the issue of granting full statehood to Delhi, in the conventional sense of the term, ever since the AAP came to power over a year back. He fully well knew that all his three predecessors had agitated on this front, demanding full statehood, but failed to achieve anything. So look for an unconventional solution to the problem where at least the issue of power sharing between the Lt Governor and the Chief Minister are decided with clarity.
Following Delhi High Court verdict naturally all eyes are riveted on Supreme Court where the issue is pending before a Constitutional bench. Again it was in line with Kejriwal’s unconventional approach that he had approached the Apex Court for a clarity on Delhi’s Constitutional status rather than hitting the roads and taking recourse to agitation in support of full statehood to Delhi. Perhaps, in his heart of hearts he knew it was not achievable.
Whether full statehood to Delhi is financially and administratively viable, it is a separate question which Kejriwal is not ready to discuss. But he has a point when a Chief Minister with 67 MLAs in a House of 70 talks about his powers and answerability to those who had overwhelmingly reposed faith in him and his party.
So there lay the significance approaching Supreme Court for further clarity on the issue.
While almost all parties including BJP repeatedly have from time to time been promising full statehood for Delhi, there were 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).
It is also imperative to understand Delhi’s current Constitutional position.
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. A similar status is shared by Puducherry.
Even the Delhi High Court judgment has clearly corroborated the fact that even after the Constitution (69th Amendment) Act, 1991, which added Article 239AA providing for special provisions for the NCT of Delhi, Delhi remains a UT, and is not like a full state.
Under this 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 as 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 is inadequate 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 Lt Governor to interfere than the elected Government. So much so that if he so wants the Lt Governor can checkmate the functioning of the Delhi government on every issue which was abundantly visible in the last few months.
The Rules also provide that in cases where he is unsure of what his stand should be, the Lt Governor 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”. This provision has the potential of getting misused if Delhi and Central Governments are at an adversarial position politically, ideologically and administratively. This situation presently persists between the current BJP-led NDA dispensation at the Centre and the AAP Delhi Government.
The impasse needs to be resolved. It seems Kejriwal has already climbed down by not talking of full statehood as it is a complex issue Delhi being the national capital also. It would be in everyone’s interest if the demarcation of powers and duties is clearly defined and loopholes in the relevant rules and laws plugged.
feedbackexcelsior@gmail.com