Who is the Boss of Govt. of NCT of Delhi? [A constitutional battle between Lt. Governor & Delhi Govt. in an asymmetric Federal Govt. : A hope for full Statehood of Delhi]

vikash-kumar-bairagi_1I asked my soul: What is Delhi?

She replied: The world is the body and Delhi its life.[1]

Delhi is the heart of the country and that is why it attracts a large number of the people from all parts of the country. So, it is also called as a cosmopolitan State of the nation. From the ancient Indraprastha area of Mahabharata to the British era it has faced many ups and downs. In the modern times, the National Capital Territory of Delhi by the Sixty-ninth Constitution Amendment of the Indian Constitution, Delhi is now governed by a democratic government. The governance of Delhi is extremely multifaceted and rigid due to many institutions governing it in many different areas. The governance of Delhi is in four hands, first Elected Government (through Lieutenant Governor), second Municipal Corporation of Delhi (through Ministry of Home Affairs), third Delhi Development Authority (through Ministry of Urban Development), and fourth Lieutenant Governor (on reserved subjects i.e. “public order”, “police”, “land”). All these multiplicity of functions of governance create a new type of federalism.

After the long time of this existing system in Delhi which was governed by the Congress and Bharatiya Janata Party for more than 20 years, from Madan Lal Khurana to Sheila Dikshit, all the Governments did not find any intricacy with the existing system but all were unanimous in favour of full Statehood of Delhi.[2] Following the Jan Lokpal Bill movement in Delhi, Arvind Kejriwal led Aam Aadmi Party formed the Government in 2014 (29 out of 70 constituency seats) and again in the 2015 (67 out of 70 constituency seats). The Government was formed to eradicate corruption from the grassroots but the 40 years old Anti-Corruption Bureau (ACB) Branch was snatched from the AAP Government’s jurisdiction by a Home Ministry’s notification [S.O. No. 1368 (E) dated 21-5-2016][3] and was given to the Lieutenant Governor’s office. Later a commission of enquiry set up to investigate the mix up in the Delhi District Cricket Association (DDCA) was formed by the Government but it was declared null and void by the Lieutenant Governor. And thereafter Lieutenant Governor passed an order that “Government needs to take approval of every action from the Lieutenant Governor’s office”.[4]

All these orders of the Lieutenant Governor were only brought in the AAP’s regime. Despite the successful elections, now the question arises as to who is the person in charge of Delhi: democratically elected Government or Lieutenant Governor appointed by the President of India. Now, the question is what will happen to the trust of the people on the premise of which they voted to form the Government in Delhi.

Constitutional and historical background of Delhi

George Santayana, philosopher is believed to have said something to the effect that “Those who do not remember their past are condemned to repeat their mistake.”[5] It is essential to understand the development of the Delhi in its current situation. Basically the constitutional historical background of Delhi began when King George V put the seal on the proposal by announcing the British India’s capital shift from Calcutta to Delhi on 12-12-1911 and referred to it as a Chief Commissioner’s Province.[6] The entire country heard it in stunned silence and city came into limelight after a long time which was earlier in the Mughal era. The historical backdrop of Delhi is relevant as in Special Reference No. 1 of 2002, In re[7], it was observed that:

15. One of the known method to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates, or any enactment preceding the enactment of the constitutional provisions.[8]

Under the provision of the Government of India Act, 1919 Delhi continued to be a centrally administered territory. Under the Government of India Act, 1935, a Federal Government was constituted and thus, the Federation of India came into existence. But Delhi remained a Chief Commissioner’s Province.[9]

On 31-7-1947 Dr B. Pattabhi Sitaramayya Committee was constituted to consider and report on the constitutional changes required in the administrative structure in the Chief Commissioner’s Province. This became necessary on account of the lack of coordination between the various departments in the Government of India so far as Delhi was concerned. One issue which arose before the Committee was whether the Delhi seat, both old and new, should or should not be separated from the rest of the area and placed directly under the Federal Government. Finally the Committee recommended that “we are, however of the opinion that the people of the Province which contains the metropolis of India should not be deprived of the right of self-government enjoyed by the rest of their countrymen living in the smallest of the villages”[10].

In Kesavananda Bharati v. State of Kerala[11] it was held that the Constituent Assembly Debates although not conclusive, yet the intention of Framers of the Constitution in enacting provisions of the Constitution can throw light in ascertaining the intention behind such provision. It is necessary to set out the excerpt from the speech of Shri Deshbandbu Gupta, who vehemently raised the voice of the people of Delhi in the Constitutional Assembly Debates “There is a strong feeling amongst the people of Delhi and other centrally governed areas that they have been given step-motherly treatment. It is pointed out that when we are deciding the Constitution of the whole country, there was no reason why the centrally administered areas which had been denied autonomy so far should continue to be ignored”[12]. Pandit Nehru vehemently opposed the autonomy to Delhi in his speech.[13]

India celebrated its Independence and Constitution was adopted by the Constitution Assembly on 20-11-1949, and came into effect on 26-1-1950. With its adoption, the Union of India became the modern and contemporary Republic of India. In its original form, Constitution of India, contained four categories of the States, in the First Schedule, namely, Part A, Part B, Part C and Part D. The Constitution of India transformed all the Chief Commissioner’s Provinces. Consequent to Delhi becoming a Part C State, the Government of Part C States Act, 1951 was enacted. The said enactment clearly provided that there would be a legislative assembly for each such State. But assembly shall not have power to make laws with respect to public order, police, municipal corporation and land and building possession in the State Government.[14]

State Reorganisation Act, 1956

A unicameral, directly elected legislature with reservation of seats for Scheduled Castes, came into existence in Delhi on 17-3-1952. The law-making power was subject to limitations provided in Section 21 of the Government of Part C States Act, 1951. The experience of a legislature in Delhi lasted for about 4 years up to 1-11-1956. By operation of Section 130 of the States Reorganisation Act, 1956 the Government of Part C States Act, 1951 was repealed. In the absence of a saving provision, the legislature constituted for Delhi came to an end. By virtue of the Constitution (Seventh Amendment) Act, 1956, the First Schedule now provided for only two categories, namely, the “State” and the “Union Territories”. Act specified six Union Territories, namely, Delhi, Himachal Pradesh, Manipur, Tripura, Andaman & Nicobar Islands and Laccadive Islands. Delhi thus became a Union Territory.

The first attempt to provide legislative assembly and Council of Minister was made by 47th Constitutional Amendment, 1978 Bill and Government of Union Territories Act,1978 were framed in this behalf. With the dissolution of the Lok Sabha in 1979, the said two Bills lapsed.

The Government of India decided to constitute a committee, namely, Balakrishnan Committee to undertake a study and make recommendation for reorganising the administrative set-up in the Union Territory of Delhi. Therefore, by an order dated 24-12-1987, the Government of India appointed a committee to go into various issues connected with the administration of the Union Territory of Delhi. The Statement of Objects and Reasons appended to the Constitution (74th Amendment) Bill, 1991 stated that the said amendment was to give effect to the proposal of the Committee. Therefore, to understand the true conspectus of the issue at hand, it is very significant to analyse the report of the said Committee.[15]

A replacement of the existing system by a new one, to secure for Delhi a democratic government, was called for. The Committee also rejected the suggestion for direct administration of Delhi by the Centre. It was observed that the administration run by officials would militate against the principle of accountability of the administration to the people, which is a cardinal feature of democracy. If the structure was composed of government officials only accountability to the people would undoubtedly suffer because there would be no appropriate forum where the actions of such officials could be questioned. It was observed that one of the root causes of the problems faced in Delhi was the absence of such accountability. The Committee observed:

“It cannot be denied that the democratically elected Government provides the most effective and broad based feedback mechanism from the people on a day-to-day basis. It also provides an effective forum for ventilation of people’s grievances and demands”.[16]

If there was a Council of Ministers answerable to people’s representatives in the local legislatives, planning and development for Delhi would not be hampered and would have meaning and content, with the involvement of the people’s representatives in the process.[17]

In Parliament of India

It would be pertinent to consider herein that when the Constitution (Seventy-fourth Amendment) Bill, 1991 was being tabled, the question of granting the full Statehood to Delhi was brought up. However, it was considered more appropriate by the Lok Sabha to debate on the said issue while the Government of National Capital Territory of Delhi Bill, 1991 was tabled, in the evening session the very same day.

On a perusal of the debates, it becomes evident that while the BJP was whole heartily supporting a claim for full Statehood of Delhi, the Congress Party was in favour of granting partial autonomy, while retaining superseding powers with the Centre. It becomes necessary to refer to the views of some of the members of the Lok Sabha therein to understand the debates which took place on the said issue.

Madan Lal Khurana was the first person to raise objections regarding the Bill. His view was that:

Today there is rule of bureaucracy in Delhi. The situation of Delhi is becoming bad to worse. The reason is that the bureaucrats who rule Delhi, are not responsible to Delhi. They do not have any attachment to Delhi. Those who don’t know the geographical conditions of Delhi, are ruling Delhi. Today, Delhi is an orphan and without protector. Whom should the people of Delhi approach for redressal of their grievances and problems as there is no political structure…. I would like to say in one sentence that Delhi should have been provided a unified authority, a full-fledged body to solve these problems effectively. People of Delhi were dreaming about a unified, power and an effective system. But I want to say that this proposed Bill has shattered the dreams of the people of Delhi. As I have said earlier that there is a multiplicity of authorities in Delhi i.e. DDA, DTC, DMS, and many other departments. They do not owe responsibility to anybody.[18]

Tarachand Khandelwal in the Lok Sabha also opposed the present situation of Delhi Legislation:

It is just like a toy. The Delhiites have been cheated. It is just like the case when a father put Rs 12 lakhs in a coffer and informs his son that he has put the coffer in the latter’s room but he would continue to keep the key with him. Though Delhi has been given as Assembly, all powers have been retained by the Centre.[19]

L.K. Advani, Leader of the Opposition at that time, was in favour of granting Statehood to Delhi.

The Government of National Capital Territory of Delhi Bill was passed by both Houses of Parliament and received the assent of the President on 2-1-1992. The said Act 1 of 1992 was published in the Official Gazette on 21-1-1992 appointing 1-2-1992 as the date under sub-section (2) of Section 1 of the Act on which the Act was to come into force.

National Capital Territory:  A State – Issues and challenges

Delhi is a peculiar case, neither being a State, nor a Union Territory. So, Article 239, which deals with Union Territories, does not apply to Delhi. Instead, Delhi is governed by Articles 239-AA and 239-AB, introduced by Sixty-ninth Constitutional Amendment in 1991. There is a Council of Minister in the legislative assembly with the Chief Minister at the head to aid and advice the Lieutenant in the exercise of his function in relation to matters with respect to matters with the Legislative Assembly has power to make laws except public order, police and land. There are 60 matters relating to the municipal governance that cannot be administered without the approval of the Union Government.

Meaning of Full Statehood for DelhiBasic demands -Police, law and order, land (except NDMC, Red Fort, and Cantonment Board Area) and municipalities under the direct control of Delhi Government. There shall be a Governor, who will be bound by the aid and advice of the Council of Ministers. There shall be a State Public Service Commission and its Cadre. Amendment to the certain legislation of the Central Government i.e. Delhi Police Act, 1978, DDA Act, 1957, Delhi Municipal Corporation Act, 1957.[20]

Land (Delhi Development Authority — DDA) — Delhi Development Authority is controlled by the Ministry of Urban Development. The DDA was established in 1957 by an Act of Parliament to promote and secure a planned spatial development of Delhi. Its mandate is primarily to acquire land for the development of new areas and to hand over the same to the relevant authority once developed. But by enlarging its powers and jurisdiction, the Second Administrative Reforms Commission (during the UPA rule led by the Veerappa Moily) had strongly recommended that the DDA should be chaired by the Chief Minister of Delhi instead of the Lieutenant Governor and State Government to be given control over land[21]. Recently a panel appointed by the Central Government headed by former Home Secretary Madhukar Gupta submitted to the Urban Development Ministry also recommended the same as abovementioned Commission. As “revisit and redraft” the DDA, 1957 Act[22] but Centre yet, did not reveal the report of the panel. Delhi Assembly also passed a resolution to transfer DDA to State Government. During the discussion on the resolution Sanjeev Jha proposed that “We being the Government should have DDA under us”.[23]

Police, Law and Order — Maintenance of law and order in the capital is of utmost importance. Police, law and order of Delhi is under Ministry of Home Affairs and the Delhi Government  has no say in police administration and law and order by Delhi Police Act, 1978. As above Madan Lal Khurana[24] was concerned about the police that if a crime is committed in rural area of Delhi then Central Government will be liable. In State (Govt. of NCT of Delhi) v. Ram Singh[25] also there was demand to shift the control of Delhi Police.

Asymmetry in Indian federalism

Some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside.[26]

The concept of asymmetric federalism was introduced by Charles Tarlton in 1965, who argued that “There is naturally high variation of interests among federal sub-units.” As in India, there is a regional, linguistic, cultural diversity it can be called as a de facto asymmetry. This type of asymmetry is natural and we cannot change it. De jure asymmetry, on the other hand is the product of conscious constitutional design. Same as in India, the special status of autonomy of the State of Jammu and Kashmir as provided under Article 370 and special status to North-East States.[27] The same as Delhi is also neither a State nor as a Union Territory, although it has been entitled to have a legislative assembly and to enact laws in terms of Article 239-AA of the Constitution.

There is a long demand of abolition of Article 370 and Shyama Prasad Mukherjee gave the slogan “Ek Desh Mein Do Vidhan, Do Pradhan aur Do Nishan Nahi Chalenge” during the first national meet of his party Bharatiya Jana Sangh, in 1953. At the same time there is an asymmetry in the Union Territories[28] and Delhi is also a UT. There is a long demand of the Statehood for Delhi. The first Chief Minister of Delhi Madan Lal Khurana termed Delhi Assembly as a “C” grade assembly.[29] The Assembly can only function if the Central Government allows it to and declared that we will not forget the demand of Statehood till the last breath.

End this rule by remote control: Statehood is a necessity for Delhi[30]

We discussed above that all the parties were in favour of the grant of Statehood to Delhi but unfortunately it was not granted.[31] Ironically, a Bill to grant Statehood was tabled by the then Deputy Prime Minister L.K. Advani in 2003 but it lapsed with the 13th Lok Sabha.[32]

The former Lieutenant Governor Najeeb Jung’s† first statement before the sixth Delhi Assembly made a strong pitch for Statehood. A government statement linked Statehood:

The provision of critical public services such as law and order and low cost housing would happen more smoothly if Delhi were accorded autonomy as a full-fledged State with greater control over these aspects. The Centre’s publicly stated position of promoting cooperative federalism will hopefully help in securing genuine autonomy for Delhi’s governance. The ultimate aim is to ensure that institutions such as DDA, MCD and Delhi police are accountable to the elected Government of Delhi.[33]

Professor Philip Bobbitt in his famous book “Constitutional Fate Theory of the Constitution” has dealt with a typology of constitutional arguments. To him, there are six archetypes: historical, textual, structural, prudential, doctrinal and ethical.[34] That Delhi should be a State of the Union the argument for Statehood can be summarised as follows with support of the current example.

The debates in the Constituent Assembly makes it clear that it was never the intention of the Constitution to exclude Delhi from the purview of responsible Government. And debates in Parliament on the 69th Constitution Amendment also make it clear that there was no intention to deny the Statehood.[35]

Delhi has a vast population of over 20 million at present (more than 10 fully-fledged States) and it is growing rapidly. If the people of Delhi in such vast numbers are not given an effective voice in the running of their own administration, democracy, which is the bedrock of the system of Government adopted by the people of India after the attainment of our hard-won freedom, will have no meaning and content. The Supreme Court in S.R. Chaudhuri v. State of Punjab[36] has observed as follows:

34. The very concept of responsible Government and representative democracy signifies Government by the people. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do.

The mandate of the people, with whom the sovereign power resides, must be respected and Statehood should be provided.

Recently a large number of people of Delhi were affected by the dengue and chikungunya and other water (vector) born diseases. The people of Delhi have a right to good governance. In Goberdhan Lal v. State of U.P.[37], it was recognised that Article 21 also includes in itself the fundamental right to good governance. It was observed that:

12. … The citizens have a fundamental right to good governance, and this right to have good governance is part of Article 21 of the Constitution. Article 21 has been interpreted by the Supreme Court in several decision to mean that the citizens have a right to a dignified and civilised life, and not merely an animal life. Unless the citizens get good governance it is not possible for them to have a dignified and civilised life.

The general interest of the people of Delhi should not be deny their fundamental right. The working of the present system over the years has amply demonstrated that most of the problems faced by the common man in Delhi are due to the lack of accountability of the administration to the people which, in turn, is due to the fact that the representatives of the people of Delhi are not entrusted with the responsibility of Government and do not have the necessary powers to attend to the needs of the people or to redress their grievances.

There are in our country, States with much smaller area, population and financial resources than those of Delhi. Like Himachal Pradesh[38], Goa[39], Tripura[40] and Manipur[41]  were Union Territories with population much less than those of Delhi have become States in the recent past. Delhi who is in no way inferior to others and which also made sacrifices for the attainment of freedom should not be deprived of such fruits.

There is also no substance in the contention that the financial strength and viability of Delhi may not justify the grant of Statehood. Delhi is a thriving commercial and business centre with a high per capita income[42] (each citizen earns three times more than India average)[43] and has vast potential for collecting taxes and revenues[44]. If Delhi becomes a full State, it can evolve a taxation structure, so as to considerably augment the revenues of the Delhi exchequer.

The author is of the opinion that if Delhi is provided a full Statehood it would provide a responsive and representative Government at the local level with adequate powers to deal with matters of day-to-day concern to the people of Delhi which is accountable to them. The issue is not Statehood for the sake of Statehood. It is a necessity for the nation’s capital and one of the most populated cities in the world.

Emergence of the issues: More constitutional than political[45]

The present situation can be compared to the situation in Russia when Boris Yeltsin, the elected President of Russia in the Soviet Union’s newly minted democracy challenged Mikhail Gorbachev’s right to rule Moscow as President of the Soviet Union in 1991, there has been two tiers of the same Government in the annals of modern nation States.[46]

It became a Catch 22 situation in Delhi where Delhi Government and Lieutenant Governor were challenging the orders of each other. When one passed an order subsequently another declared it as void ab initio. On one side was the democratically elected Government which is representative of people and on another side was the Lieutenant Governor appointed by the President of India.

Delhi Anti-Corruption Bureau (ACB) — Delhi Government’s Anti-Corruption Bureau caught a Delhi Police head constable red-handed for accepting a bribe. But Delhi Police contended that ACB of Government of NCT, Delhi does not have the jurisdiction or competence to act on the complaint on the Central Government employee. But Delhi Government contended that accused, is a Delhi Police personnel serving the citizens in the NCT, Delhi and the functions and affairs of the Delhi Police personnel substantially and essentially relate to the affairs of the Government NCT, Delhi.[47]

Chief Secretary appointment issue — The stand off, especially over control of key bureaucratic appointments, was sparked by Mr Jung’s appointment of IAS Officer Ms Shakuntala Gamlin as acting Chief Secretary. This was opposed by Mr Kejriwal on grounds that it fell beyond the scope of the Lieutenant Governor’s powers to do so without the aid and advice of the Ministers.[48]

Two notifications of Home Ministry — The Home Ministry’s notification, siding with the Lieutenant Governor, states that apart from public order, police and land, the category of “services” also falls within the scope of the Central Government. And in another notification allows the ACB to only prosecute Delhi government employees and not those of the Central Government. By this notification ACB was not allowed to arrest the Delhi Police constable.[49]

Delhi Assembly moved a resolution against Centre’s notification. Moving the resolution, Deputy Chief Minister Manish Sisodia said issuance of the notification was an “insult” to the “biggest mandate” the people of Delhi had given in the assembly polls.[50]

Delhi Government to set up Inquiry Commission to probe cricket body — Delhi Government has decided to set up a commission of inquiry under chairmanship of former Solicitor General Gopal Subramanium to probe alleged irregularities including financial bungling in the capital’s cricket body DDCA. The Committee had also recommended to the Government to appoint a Commission of Inquiry under the Commission of Enquiries Act, 1952 while mentioning about findings on DDCA’s alleged wrongdoings by various probe panels in the recent past including the Serious Fraud Investigation Office (SFIO).[51]

Aid and advice

The Lieutenant Governor is bound to act on the aid and advice of Council of Ministers of the legislative assembly of NCT, Delhi. The two Division Benches of the Court have interpreted Article 239-AA(3) read with Article 239-AA(4) to hold that Lieutenant Governor is bound to act on the aid and advice of the Council of Ministers in matters in which the Legislative Assembly of GNCTD has the power to legislate.[52] The Lieutenant Governor occupies a hybrid position, that is to say, in matters where the legislative competence vests with the Legislative Assembly of Delhi, he would act on the aid and advice of the Cabinet.  Article 239-AA constituted a fully-fledged legislature for Delhi which is different from the body constituted by Parliament under Article 239-A to function as a legislature for a Union Territory. There is a distinction between a body constituted by Parliament and the legislature created by the Constitution.[53] Under Article 239-AA, a Cabinet form of Government has been put in place for Delhi wherein the Council of Ministers along with the Chief Minister are collectively responsible to the people of Delhi and consequently the Lieutenant Governor is bound by the aid and advice of the Council of Minister headed by the Chief Minister.[54] Parliamentary democracy is a part of the basic structure of the Constitution and Government is responsible to the people through the elected representatives.[55] Under Article 239, the Union Territories are administered by the President acting through an administrator to be appointed by him. But this does not mean that the Union Territories becomes merged with the Central Government. They are centrally administered but they retain their independent identity.[56] Though the Union Territories are centrally administered under provision of Article 239 they do not become merged with the Central Government.[57] The Lieutenant Governor is bound by the aid and advice of the Council of Ministers headed by the Chief Minister. Since NCT, Delhi is being governed by a democratically elected Government, the purport of Article 163 of the Constitution is squarely applicable and as per the ratio laid down by the Constitution Bench in Samsher Singh v. State of Punjab[58], the Lieutenant Governor is bound by the aid and advice of the Council of Ministers. In the light of law laid down in Rajendra Singh Verma v. Lt. Governor (NCT of Delhi)[59] which was rendered after applying the ratio laid down by the seven Judges of the Supreme Court in Samsher Singh[60], the issue as to whether the Lieutenant Governor is bound by the aid and advice tendered by the Council of Minister is no longer res integra. The prohibition order passed by the Lieutenant Governor without seeking aid and advice of his Council of Ministers as required under Article 239-AA(4) is ultra vires and illegal.

Since there is an elected assembly with the Council of Ministers headed by the Chief Minister in NCT of Delhi, the status of Lieutenant Governor of NCT of Delhi is similar to that of a Governor in the matter of discharge of executive functions and therefore, in terms of the dicta laid down in Samsher Singh[61], the Lieutenant Governor cannot act on his own with regard to those subjects in respect of which exclusive legislative competence is conferred on the Legislative Assembly of NCT, Delhi and he is bound to act only on the aid and advice of the Council of Ministers headed by the Chief Minister.

In appointment of senior officer

As far as States are concerned, the Chief Secretary is appointed by the Chief Minister and the Ministers. The interpretation for this can be found in these landmark Supreme Court judgments. E.P. Royappa v. State of T.N.[62] states that:

87. … The post of Chief Secretary is a highly sensitive post … [Chief Secretary is a] lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister….

Similarly, State of Punjab v. Salil Sabhlok[63] says:

119.2. … it may be necessary for [the] Chief Minister of a State to appoint a “suitable” person as a Chief Secretary or the Director General of Police … because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and requirements of the State. The underlying premise also is that the State Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end….

These precedents clarify the rationale that the Chief Minister ought to have the discretion to appoint Chief Secretaries in the interest of a smooth functioning representative Government.

Therefore, the following can be reasonably concluded based on a joint reading of the observations: first, as per Article 239-AA(4) read with Section 41 of the GNCT Act, the Lieutenant Governor does not have any discretion to appoint the Chief Secretary and other such posts, nor is there any special law granting him this discretion; second, the Lieutenant Governor is bound by the “aid and advice” of the Council of Ministers and the Chief Minister in all matters that concern the Legislative Assembly. A democracy, by design, guarantees that it is the party voted into power that represents the people of Delhi.


The solution is, in Justice Holmes’s phrase, to “think things not words”. “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.”[64]

In the long run, regardless of such adversarial legal technicalities, there can be no compromise when it comes to cooperation, trust and coexistence between the Lieutenant Governor, the Delhi Government and the Centre. A clear interpretation of the existing laws, in the larger interest of representative democracy, would suffice, as has been established. In sum, the question of Statehood for Delhi need not be raised to resolve the tussle. There are two possible ways to resolve the tussle that follows:

  1. Constitutional amendment
  2. Supreme Court judgment declares contention of Delhi Government valid.

The present situation of the Delhi is not by any law enacted by Parliament but by incorporating suitable provision in the Constitution of India itself. Therefore, any change in the present set-up, even of a minor nature can be made only by Parliament by a process of amendment of the Constitution and that too by a 2/3rd majority. Today, in the present context the number in Parliament is not in the favour of Delhi Government to achieve its goal. Despite the fact that, some regional parties are in full support of Delhi Government. And after having a look at the tussle of power it seems very dreamy state of affairs. That NDA Government led by Narendra Modi will bring any constitutional amendment with respect to the status of Delhi.  The former Lieutenant Governor Najeeb Jung†, after the Delhi High Court judgment delivered in August, held a press conference and challenged the Delhi Government for the constitutional amendment. “Read the Constitution well, follow the Constitution. We will help you where you want to. He will have to get 280 MPs in the Lok Sabha and a large number in Rajya Sabha to change the Constitution.[65]

     *  2nd year student, National University of Study and Research in Law, Ranchi. E-mail : vkbairagi23@gmail.com.

 Author wishes to acknowledge  Suraj Kumar  (2nd year, NUSRL, Ranchi) for valuable help with editing and Dr. K. Syamala (Assistant Professor NUSRL, Ranchi) for support and suggestions.

[1]  Mirza Asadullah Khan Ghalib, in Khushwant Singh, Delhi: A Novel 16, (Penguin UK, 1-9-2010).

[2] Govt. of NCT of Delhi, Premier on Full Statehood, Bharatiya Janata Party and Congress on Full Statehood of Delhi, (10-8-2016), <http://delhi.gov.in/wps/wcm/connect/DOIT_SODB/sodb/home>.

[3]  Govt. (NCT of Delhi) v. Union of India, 2016 SCC OnLine Del 4308, at 55, para 142.

[4]  Purushottam Goyal & S.K. Sharma, Polity and Governance of Delhi 127, (Ist Edn. National Book Trust, New Delhi 2014).

[5]  George Santayana, Persons and Places: Fragments of Autobiography, 284 (Cambridge, Massachusetts: The MIT Press, 1986).

[6] Subhro Niyogi & Jaideep Mazumdar, Shifting Pain, The Times of India, (11-12-2011), <http://timesofindia.indiatimes.com/city/kolkata/Shifting?pain/articleshow/11065881.cms?referral=PM>.

[7]  (2002) 8 SCC 237.

[8]  (2002) 8 SCC 237, 265 at para 15.

[9]  The Government of India Act, 1935, S. 94.

[10]Pattabhi Sitaramayya Committee, A report on Constitutional change in Delhi, Chief Commissioners’ Province, <http://archive.org/stream/report192200indirich/report192200indirich_djvu.txt>

[11]  (1973) 4 SCC 225 : AIR 1973 SC 1461.

[12]  Deshbandhu Gupta, IX Constituent Assembly debate, <http://parliamentofindia.nic.in/ls/debates/vol9p2.htm>.

[13]  Ibid.

[14]  The Government of Part C States Act, 1951, S. 21.

[15] Gopal Subramanium, In re, Delhi Government on the issue of Aid and Advice, Legal opinion, (19-5-2015), <http://delhi.gov.in/wps/wcm/connect/08db088048732a83838dff14d7cdf9d1/Opinion+of+Sri+Gopal+Subramaniam.pdf?MOD=AJPERES&lmod=1950132495&CACHEID=08db088048732a83838dff14d7cdf9d1>.

[16]  Ibid.

[17]  Ibid.

[18]  Ibid.

[19]  Ibid.

[20]  Govt. of NCT of Delhi, The State of Delhi Bill, 2016, S. 54, S. 55 and S. 56, <http://delhi.gov.in/wps/wcm/connect/DOIT_SODB/sodb/home>.

[21]  Second Administrative Reforms Commission, State and District Administration 93-98, 15th Report, (31-8-2005), <www.arc.gov.in/15threport.pdf>

[22]  Moushumi Das Gupta, Centre Sitting on Panel Report, Hindustan Times, (10-10-2016), http://www.hindustantimes.com/india-news/centre-sitting-on-panel-report-that-calls-for-more-power-to-delhi-govt/story-x4TwFAYmfEPCgkUaF0YwJL.html>.

[23]Mohammed Iqbal, Delhi Assembly passes resolution to transfer DDA to State Government, The Hindu, (27-6-2015), <http://www.thehindu.com/news/cities/Delhi/assembly-passes-resolution-to-transfer-dda-to-state  govt/article7359870.ece?ref=tpnews>.

[24]Gopal Subramanium, In re, Delhi Government on the issue of Aid and Advice, Legal opinion, (19-5-2015), <http://delhi.gov.in/wps/wcm/connect/08db088048732a83838dff14d7cdf9d1/Opinion+of+Sri+Gopal+Subramaniam.pdf?MOD=AJPERES&lmod=1950132495&CACHEID=08db088048732a83838dff14d7cdf9d1>.

[25]  2013 SCC OnLine Del 3553.

[26]  Jawaharlal Nehru, The Discovery of India 103, (Centenary Edition, Oxford University Press, 1989).

[27]  Louise Tillin, United in Diversity? Asymmetry in Indian Federalism, Publius 37.1 (2007).

[28]  NDMC v. State of Punjab, (1997) 7 SCC 339 : AIR 1997 SC 2847.

[29] Vijay Jung Thapa, All Frills and no Power, India Today, (31-12-1993), <http://indiatoday.intoday.in/story/madan-lal-khurana-finds-himself-powerless-a-cm/1/303583.html>.

[30] Shailaja Chandra, End this rule by remote control: Statehood is a necessity for Delhi, Hindustan Times, (7-2-2015), <http://www.hindustantimes.com/ht-view/end-this-rule-by-remote-control-statehood-is-a-necessity-for-delhi/story-S47Zc292utzOIPNJmDqkZJ.html>.

[31]Govt. of NCT of Delhi, Premier on Full Statehood, Bharatiya Janata Party and Congress on Full Statehood of Delhi, (10-8-2016), <http://delhi.gov.in/wps/wcm/connect/DOIT_SODB/sodb/home>.

[32]Parliament of India, Lok Sabha: Text of Debate, Constitution (One Hundred and Second Amendment) Bill, 2003 (

[33]Govt. makes strong pitch for Statehood, Times of India (25-2-2015). <http://timesofindia.indiatimes.com/city/delhi/Govt-makes-strong-pitch-for statehood/article show/46362602.cms>.

[34]  Philip Bobbitt, Constitutional Fate Theory of Constitution 3-5, (Oxford University Press USA, 2d Edn. 1984).

[35]Gopal Subramanium, In re, Delhi Government on the issue of Aid and Advice, Legal opinion, (19-5-2015), <http://delhi.gov.in/wps/wcm/connect/08db088048732a83838dff14d7cdf9d1/Opinion+of+Sri+Gopal+Subramaniam.pdf?MOD=AJPERES&lmod=1950132495&CACHEID=08db088048732a83838dff14d7cdf9d1>.

[36]  (2001) 7 SCC 126, 143, para 34.

[37]  2000 SCC OnLine All 308, para 12.

[38]  The State of Himachal Pradesh Act, 1970, S. 4.

[39]  The Goa and Daman and Diu Reorganisation Act, 1987,  S. 5.

[40]  The North-Eastern Areas (Reorganisation) Act, 1971, S. 9.

[41]  Ibid.

[42]  Union Budget, Economic Survey of 2015-2016, Statistical Report, <http://www.indiabudget.nic.in/survey.asp>.

[43]  Each Delhi citizen earns three times more than Indian average, Indian Express, (25-6-2015), <http://indianexpress.com/article/cities/delhi/economic-survey-each-delhi-citizen-earns-three-times-more-than-india-average./>.

[44]  Ibid.

[45] Saikumar Rajgopal, More constitutional than political, The Hindu, (25-5-2015), <http://www.thehindu.com/opinion/lead/more-constitutional-than-political/article7236281.ece>.

[46] Jha Prem Shankar, Narendra Modi’s War on Arvind Kejriwal Will Have Repercussions Beyond Delhi, The Wire, (8-10-2106), <http://thewire.in/71806/narendra-modis-war-arvind-kejriwal-will-repercussions-beyond-delhi-2/>.

[47]  Anti-Corruption Bureau Arrests cop for taking Rs 20,000 Bribe, Hindustan Times, (2-5-2015), http://www.hindustantimes.com/delhi/delhi-anti-corruption-bureau-arrests-cop-for-taking-rs-20-000-bribe/story-a47W2cRCJKaaPCzzy0xNlO.html>.

[48]Lieutenant Governor names acting Chief Secretary Delhi CM attacks unconstitutional order, Times of India, (15-5-2015), <http://timesofindia.indiatimes.com/city/delhi/LG-names-acting-chief-secretary-Delhi-CM-attacks unconstitutional-order/articleshow/47301460.cms>.

[49] Narayan Shalini, Police Govt. Faceoff: After ACB arrests constable for graft, Indian Express, (3-5-2015), <http://indianexpress.com/article/cities/delhi/police-govt-faceoff-after-acb-arrests-constable-for-graft-police-files-kidnap-case/>.

[50] Kejriwal-Jung war: Delhi Assembly moves resolution against Centre’s notification, First Post, (26-5-2015), <http://www.firstpost.com/politics/kejriwal-jung-war-delhi-assembly-moves-resolution-against-centres-notification-2263896.html>.

[51] Delhi Government to set up the Inquiry Commission to Probe Cricket Body, NDTV, (15-12-2015), <http://www.ndtv.com/delhi-news/delhi-government-appoints-inquiry-commission-to-probe-cricket-body-1257101>.

[52]  Om Prakash Pahwa v. State of Delhi, 1998 SCC OnLine Del 585 : (1998) 46 DRJ 719 (DB).

[53]  Shiv Kirpal Singh v. V.V. Giri, (1970) 2 SCC 567.

[54]  U.N.R. Rao v. Indira Gandhi, (1971) 2 SCC 63.

[55]  P.V. Narsimha Rao v. State, (1998) 4 SCC 626.

[56]  Chandigarh Admn. v. Surinder Kumar, (2004) 1 SCC 530, 533.

[57]  Satya Dev Bushahri v. Padam Dev, AIR 1954 SC 587.

[58]  (1974) 2 SCC 2 831.

[59]  Rajendra Singh Verma v. Lt. Governor (NCT of Delhi), (2011) 10 SCC 1.

[60]  (1974) 2 SCC 2 831.

[61]  (1974) 2 SCC 2 831.

[62]  (1974) 4 SCC 3, 39, para 87 : AIR 1974 SC 555.

[63]  (2013) 5 SCC 1.

[64]  Oliver Wendell Holmes, Law in Science and Science in Law, 12 Harvard Law Review, 443, 460 (1899).

[65]  Rachna Kapoor, Najeeb Jung Speaks Exclusive on Delhi High Court Judgment, Times Now (4-8-2016), <https://www.youtube.com/watch?v=b6YrSQlakPw>.

†Shri Najeeb Jung resigned as Lieutenant Governor on December 22, 2016.


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    With thanks! Valuable information!

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    Excellent piece of expression Mr. Bairagi. You have succinctly raised the contradiction about separation of power among the various stakeholders. This problem is in search of principle which is yet to be conceived. I found your article well analysed, good read as well as informative.

    Manjeet Sahu
    High Court of Jharkhand

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