Delhi: Statehood- legal, constitutional issues
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Statehood
Jan 12 2015
NDA govt's '03 Bill to confer Delhi statehood was not passed
How are states different from union territories?
Union territories are governed directly by the Centre. According to the Constitution's article 239 , ev ery UT shall be administrated by the president through an adminis trator appointed by himher. But two of the UTs, Puducherry and Delhi, are different in that there is a greater devolution of powers in their case. They are allowed to elect members of legislative assemblies and have a council of ministers with jurisdiction over depart ments such as education, health, power and power. Being the seat of the na tional government, the Delhi gov ernment has been denied control over vital departments such as po lice and land. This is why Delhi is far from a full fledged state.
What is the Government of Na tional Capital Territory Act?
This Act of 1991 inserted two special provisions in article 239 of the Indian constitution. These provisions state that articles 324 to 329 with the exception of article 328 will also be valid for Delhi. The Act deals with the establishment of a legislative assembly and a council of ministers for the NCT of Delhi. It defines pa rameters of the assembly like number of seats, reser vation for scheduled castes, duration of assembly , eligi bility criteria for members, legislative powers of the house and so on. These proS visions make Delhi differ ent from other UTs.
How is NCT of Delhi different from states?
As per Article 239AA, the legislative assembly of Delhi has no control over establishment of public order, police, officers and servants of the high court and rights over the land of the NCT. This is in contrast to the authority vested in state governments over those subjects.
Does Delhi's lieutenant governor have more legislative power than state governors?
The special provision for Delhi states that there shall be a council of ministers, with the chief minister to aid and advise the lieutenant governor. In the case of a difference the LG can refer it to the president.The LG can act according to the decision given by the president and overrule the council of ministers.
Is the recurring demand for full statehood for Delhi feasible?
Though Prime Minister Narendra Modi has maintained silence on this issue, the previous NDA government had introduced a Bill in Parliament in 2003 through the then home minister, L K Advani, to confer full statehood on Delhi. But there was no serious attempt to pass that law.
A state that is not a state
Feb 07 2015
Subodh Varma
Is Delhi a `State' or a `Union Territory'?bb
The Centre administers a Union territory while a state is governed by its elected government. Delhi is a bit of both. Till 1991 it was a UT with a Metropolitan Council that had limited powers. Then the 69th Amendment was passed changing the set up. Delhi's official name became National Capital Territory of Delhi with a legislative assembly to be elected by citizens, a council of ministers and a CM. The lieutenantgovernor continued as the President's appointee. But certain pow ers given to legislatures were withheld from Delhi making it a special class stateUT.Another example of this is Puducherry . The first Delhi's assembly poll under the new dispensation was in 1993, which BJP won. Congress won the three subsequent elections, and the last one in 2013 produced a hung house.
Why can't Delhi be considered a fullfledged `state'?
The 69th Amendment laid down why: Legislative powers on everything related to land and public order are with the Centre. In full states, as per the Constitution, these are with state governments.There are other differences too. The Lt Governor is not the head of state, unlike other governors. The CM and ministers are appointed by the President. Parliament has overriding powers over laws passed by the state legislature.
All Delhi land is under Delhi Development Authority control. DDA has sole power to acquire or dispose it off. DDA is under the Union urban affairs ministry . Over the years, as Delhi's population exploded and land became a key requirement for settlement, this agency acquired enormous powers.
In Delhi, since public order is not state government responsibility , the Union home ministry runs Delhi Police, one of the largest metropolitan police forces in the world.
So, that's it? Some things are run by Centre and some by state government?
It's slightly more complicated. Most civic functions like sanitation, maintenance of roads, certain taxes and tolls, infrastructure, and so on are controlled by mu nicipal corporations after the 74th Constitution Amendment of 1992. The Municipal Corpo ration of Delhi was reorgan ized with a 272-member body after the 74th Amendment.
In 1997, it was won by BJP , in 2002 by Congress and again by BJP in 2007. In 2012, it was trifurcated into North, South and East Corporations, all controlled by BJP . A large chunk of funds to the municipal corporations are provided by the state.
These civic bodies don't have jurisdiction over Lutyens Delhi where residences of ministers, MPs and the diplomatic enclave are located. This island comprising 3% of Delhi's area is run by the unelected New Delhi Municipal Council. An even smaller segment where armed services establishments and residences are located is managed by the Cantonment Board, an elected body .
Extent of Centre’s powers
Feb 07 2015
Ambika Pandit
Previous chief ministers of BJP, Congress and even AAP have been seen to be on the defensive and often helpless over unresolved policing, land and legislative concerns. However, as far as Delhi's finances go, it is not dependent on the Centre directly as it generates its own resources from a tax base which continues to be robust even in the absence of a state government for a year now. However, critical subjects like land, law and order, traffic and certain financial bills rest with the union government. Delhi's lack of status as a full state also means it gets just a few hundred crores from the central government under the allocation from the union budget. Thus Delhi runs the show with its own finances from revenue generated from value added tax, excise, stamp duty and transport. Central assistance was around Rs 700 crore last year. Delhi also gets its share in central schemes.
In Delhi, LG is the representative of the Centre on all matters related to policing and land. The Centre plays a key role through urban development ministry on subjects related to land managed by DDA. Regularisation of unauthorized colonies is a key concern where centre-state coordination has a critical role. As far as Delhi Police goes, it is not only under the control of the home ministry but also gets its budget from the Centre. Delhi Cantonment too is a centrally-fi nanced entity .
The first test for any government that takes charge after the polls will be to give shape to the Delhi budget for 2015-16. The budget outlay for the current fiscal 2014-15 was about Rs 36,000 crore and the outlay for the next fiscal is expected to be of the same size.
BJP has sought votes for good governance under Narendra Modi, making Delhi's development almost a Central affair. The fact that the BJP has abandoned its long-stand ing demand for full statehood this poll season indicates that the Centre will take a keen interest if a BJP-led government takes charge in Delhi. The PM himself has been addressing rallies and seeking a vote for good centrestate coordination.
While AAP's CM candidate, Arvind Kejriwal, has assured people that he would seek cooperation of the centre on subjects linked to centre-state coordination, an AAP government will face the challenge of strengthening the capital's financial base to deliver an expansive social welfare agenda. However, the past shows that on subjects of land and policing, often CMs have found themselves struggling to take decisions due to dependence on the Centre, leading to a stalemate.
During the 49 days of AAP government, one saw the centre-state row escalate over Jan Lokpal Bill with then CM, Arvind Kejriwal, refusing to refer the bill to the Centre in keeping with the provisions, arguing that there was no need for central approval. The impasse and protests by BJP and Congress over AAP's stand finally led to Kejriwal resigning from government. Sheila Dikshit as CM had also expressed helplessness on matters related to law and order. After the Nirbhaya gangrape case, the tussle between the centre and state on law and order was out in the open.The union home ministry's reluctance to remove the then police commissioner did not go down well with Dikshit.She failed to have her way though the Congress-led UPA was in power at the Centre.Similar showdowns were seen over trifurcation of the municipal corporation with the Centre reluctant to let go of its powers on municipal affairs.
ACB’s powers
The Times of India May 26 2015
Abhinav Garg
Delhi HC restores ACB's power to act against any govt official
In an embarrassment to the Centre, the Delhi high court on Monday restored the powers of Delhi government's Anti-Corruption Branch (ACB) to probe and prosecute all government employees, including IAS and IPS officers, within the jurisdiction of Delhi. Justice Vipin Sanghi, while rejecting the bail plea of a Delhi Police head constable arrested by ACB, described as “suspect“ the noti fication issued by the Union government on May 24, which spelt out the powers of the lieutenant governor (LG) in relation to the state government. It had also asserted that the ACB didn't have powers over officers in the central cadres, and virtually made it appear that the LG was the real boss of Delhi.
The HC said the LG “must act on the aid and advice of the council of ministers“ on matters over which the state had full jurisdiction“. The court stressed that “Delhi shall not be administered by the Presi dent through the LG in respect of matters over which the legislative assembly of NCT has authority to make law“.
Welcoming the HC order, the Delhi government said, “The Delhi high court verdict restoring the powers of the anti-corruption branch (ACB) is a decisive victory for the people of the national capital. The move to curtail the original powers of the ACB through an ill-conceived notification by the union home ministry on July 23 last year (2014) has been categorically rebuffed by the high court.“
The HC viewed the notification as “executive fiats“ encroaching upon areas of governance demarcated by the Constitution in favour of Delhi government under entries 1 & 2 of Concurrent List. “In my view since the Centre lacks the executive authority to act in respect of matters in Entries 1 & 2 of Concurrent List,“ the court said there “is no fetter on power of Delhi assembly in relation to matters enumerated in Concurrent list.“
Entry 1 deals with criminal law, including all matters related to IPC but excluding offences listed in List I or List II. Entry 2 is about criminal procedure, including all matters in the code of Criminal Procedure at the beginning of the Constitution.
HC concluded that the Centre lacks “power in respect of a matter falling within the legislative competence of Delhi assembly , since a law made by Parliament, the GNCTD (Government of National Capital Territory of Delhi) Act, read with Article 239AA puts fetters on executive authority of the President.“
Agreeing with the arguments of ACB's counsels, Dayan Krishnan and Rajat Katyal, the court held that the state government has the powers with respect to investigation of a crime which “stems from entries 1 and 2 of the Concurrent List of the Seventh Schedule.“
In the process, the court dismissed the bail plea of head constable Anil Kumar, rejecting his main argument that the ACB doesn't have jurisdiction to prosecute him.“Since the applicant is a Delhi Police personnel serving the citizens in NCTD and the functions of the Delhi Police personnel substantially and essentially relate to the affairs of the GNCTD, in my view, the ACB of GNCTD has the jurisdiction to entertain and act on a complaint under the PC Act in respect of a Delhi Police officer or official, and to investigate and prosecute the crime. This would also be in consonance with the guidelines issued by the CVC,“ the court noted.
Kumar's arrest by the ACB had set off a turf war between Delhi Police and the government. While the ACB booked him on corruption charges, Delhi Police registered an FIR of kidnapping on a complaint from Kumar's wife.
He was arrested by the ACB after a scrap dealer complained on the anti-corruption helpline 1033 that Kumar demanded Rs 20,000 as bribe and threatened to falsely implicate him. After the arrest, Delhi Police sent a notice to ACB to join the probe, which however sent a counter-notice to Delhi Police asking the Sonia Vihar SHO to join investigations.
Powers of lieutenant governor and chief minister
CM Arvind Kejriwal vs L-G Najeeb Jung: 2015
The Times of India 19 May, 2015
The turf war between chief minister Arvind Kejriwal and lieutenant-governor Najeeb Jung unfolded as follows.
May 15
LG Najeeb Jung appoints Shakuntala Gamlin as acting CS; AAP govt slams the move, saying LG acted against ‘the Constitution, GNCT of Delhi Act and the Transaction of Business Rules’ Jung rebuts the allegations saying under Article 239 AA of the Constitution, LG is the representative of State Authority in Delhi
May 16
CM Arvind Kejriwal asks Gamlin not to take charge, saying her appointment is against the set rule Gamlin takes charge; Kejriwal removes Anindo Majumdar from the post of principal secretary (services) after he issued the appointment letter to Gamlin following instructions from Jung LG declares the order to transfer Majumdar ‘void’ saying it did not have his approval
May 17
CM accuses Gamlin of trying to favour 2 Reliance Infra-owned discoms through a Rs 11,000-cr loan and says the Modi government wants AAP dispensation to 'fail'
May 18
AAP government locks the office of Majumdar, appoints CM’s secretary Rajendra Kumar as principal secretary (services); LG rejects the appointment
Deputy CM Manish Sisodia writes to LG, calling Jung’s stand unconstitutional
MHA notification
May 22, 2015
The Union home ministry issued a notification clarifying distribution of power between Delhi's lieutenant governor and the chief minister. According to the MHA notification, the LG has primacy in postings and transfers of officers belonging to Central services.
Here is the full text of MHA notification.
"MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st May, 2015
S.O. 1368(E).—Whereas article 239 of the Constitution provides that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify; And whereas article 239AA inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991’ provides that the Union Territory of Delhi shall be called the National Capital Territory of Delhi and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor; And whereas sub-clause (a) of clause (3) of article 239AA states that the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18 relates to ‘Land’. And whereas sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. Under this provision, a reference may be made to Entry 41 of the State List which deals with the State Public Services, State Public Service Commission which do not exist in the National Capital Territory of Delhi. Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, ‘Services’ will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi. Now, therefore, in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that - (i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President. Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate. 2. In the Notification number F. 1/21/92-Home (P) Estt. 1750 dated 8th November, 1993, as amended vide notification dated 23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for paragraph 2 the following paragraph shall be substituted, namely:— “2. This notification shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the article 239AA of the Constitution.” after paragraph 2 the following paragraph shall be inserted, namely:— “3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government”. 3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession.
[F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy."
On CM’s side: K.K.Venugopal
The Times of India, May 24 2015
Sana Shakil
Centre's notification illegal, unconstitutional: Venugopal
The Delhi government has found support in its tussle with LG Najeeb Jung from two senior lawyers who have described the central government's notification giving LG the final say in posting and transfer of Delhi government bureaucrats as “illegal and unconstitutional“. Former solicitor general Gopal Subramanium and senior advocate K K Venugopal, in their legal opinion that was sought by CM Arvind Kejriwal, have stated that the gazette notification is untenable in law and stands no chance in court. Both lawyers have wondered whether it has the approval of the President. “Such an exercise may be assailed in a court of law as a fraud on the Constitution or a colourable exercise of authority...It singularly lacks propriety when the President is still seized with the question. It is illegal and unconstitutional; and presumably , it has been issued without the requisite presidential approval,“ Subra manium has said.
Calling the MHA 's notification as void, Venugopal has said: “If a democratically elected government has been brought to power by the people, the `public services of the state' should be controlled by the elected government.“ Venugopal has also backed Kejriwal's decision to oppose senior bureaucrat Shakuntala Gamlin's appointment as acting Delhi chief secretary by the LG. “The chief secretary is the lynchpin of executive governance...but...if the government is given a chief secretary who obeys the orders of the administrator and not of the council of ministers of the chief minister, this would be a sure recipe for disaster,“ Venugopal's 11-page opinion states.
Earlier, two senior lawyers, Indira Jaising and Rajeev Dhavan, had supported Kejriwal.
Meanwhile, the Centre's notification has found support from some other lawyers who said it was “absolutely justified“. Shanti Bhushan, who was earlier associated with AAP , said: “Only the LG has the power to post and transfer bureaucrats on the direction of the central government. Delhi government has no power at all (in this regard).“ Agreeing with Bhushan, a former judge of the Delhi HC and now a senior counsel, Rupinder Singh Sodhi, said: “I think the LG was always right and the power of services (posting and transfer of bureaucrats) are always with the President which are delegated to the LG. Unlike the states where consultation by the governor with the council of minister is mandatory , in case of a union territory , it is a discretion which the LG may or may not exercise.”
