Can Statehood for Delhi Solve the LG vs AAP Power Tussle?

The demand for statehood has been in existence since 1998, but what does it mean and what will the implications be?

(Photo: Erum Gour/The Quint)

The demand of statehood for Delhi has been central to the friction between the Aam Aadmi Party government in the National Capital and the BJP-appointed Lieutenant Governor. In the last five years, the people of Delhi have seen two assembly elections, two Lieutenant Governors and countless tussles for control that have time and again paralysed the city’s administration.

All politicians want it, but no government will allow it.

In the last two decades, both Congress and BJP election manifestos have promised statehood. But each time the two parties had their shot in power, the issue took a backseat, only to be raked up by the opposition around election-time.

But is statehood a political issue? Do Delhiites care about getting statehood? How will their lives be affected? And will it solve their basic problems of bad air, no water and poor security?

How Does Delhi Work?

Post-independence, the States Reorganization Act, 1956 created the Union Territory of Delhi which was governed by a Lieutenant Governor who was answerable to the President of India, who acted on the advice of the Central government.

In 1966, the Delhi Administration Act brought the Delhi Metropolitan Council into existence. This Delhi Metropolitan Council consisted of 56 elected and five nominated members, headed by the Lieutenant Governor. This Council had no legislative powers and played only an advisory role in the government of Delhi.

However, in 1991, through the Constitution (69th Amendment) Act, this Advisory Council was replaced by a full-fledged Legislative Assembly and Delhi became a Special Union Territory and came to be known as the National Capital Territory of Delhi. What stayed unchanged, was the role of the Lieutenant Governor who’s appointed by the President on the advise of the Centre.  As a result, Delhi’s elected legislative assembly and its Chief Minister need the approval of the Lieutenant Governor to perform other administrative functions, like transferring bureaucrats, passing laws etc.

As per the Constitutional provisions, the Delhi Government has no control over the city’s three primary bodies, which fall under the Reserved Subjects list.

1. The Delhi Development Authority (DDA), responsible for housing, infrastructure and commercial and leisure facilities.
2. The Delhi Police is designated under the Union Ministry of Home Affairs.
3. The trifurcated Municipal Corporation of Delhi (MCD) is an autonomous body that provides civic services to the North, South and East divisions of the city. In April 2017, the Bharatiya Janata Party won the highest number of seats in each of the three corporations. This was the BJP’s fourth consecutive victory and it has been running the MCD for twelve years now.

The Delhi government has complete control over the Pubic Works Department, Delhi Jal Board, Ministry of Power, Health and Sanitation, and Transport and Education.

What Led to the Friction?

Two months after winning a staggering 67 out of 71 assembly seats, second-time AAP Chief Minister Arvind Kejriwal is reported to have directed bureaucrats to route files related to police, public order and land through his office.

In response, on 1 April 2015, then Lieutenant-Governor Najeeb Jung stated that he was not obligated to send files related to these three reserved subjects through the CM’s office.

Twenty days later, on 21 April 2015, the Union Home Ministry under Rajnath Singh issued a notification which essentially reiterated the Constitutional validity of the L-G’s role in the administration of the city. The notification also underlined that the L-G would have the last word when it came to matters pertaining to public order, police, land and services, saying:

“Subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi...shall in respect of matters pertaining to Public Order, Police, Land and Services...exercise powers and discharge the functions of the Central Government, to the extent delegated to him time from time by the President.”

Over the next year and a half, confrontations between the Delhi government and the Lieutenant-Governor Najeeb Jung dominated headlines.

Among other things, they clashed over the appointment of the Anti-Corruption Bureau Chief, the Home Secretary, even the Delhi Commission for Women (DCW) Chairperson, the AAP government’s decision to hike circle rates for agricultural land and the decision to set up an Inquiry Commission to probe the Delhi and District Cricket Association.

The Legal Battle

The Delhi government challenged the MHA’s notification that sought to reinforce the L-G’s control over appointments, bureaucracy, security, public order and land and filed a petition in the Delhi High Court.

However, on 4 August 2016, the Delhi High Court declared that the Lieutenant-Governor is the administrative head of the National Capital Territory of Delhi and that he was not required to act on the advice of the Delhi Cabinet.

It was a big blow to the Delhi government, which later challenged the order in the Supreme Court.

On 2 November, the hearing began on the clutch of pleas submitted by the AAP, represented by senior lawyers like P Chidambaram, Gopal Subramanian, Rajeev Dhavan, Indira Jaising, while the Centre was represented by Additional Solicitor General (ASG) Maninder Singh.

At the end of the 15-day hearings in four weeks, the Supreme Court bench headed by CJI Dipak Misra reserved its verdict on 6 December 2017.

After more than six months, the verdict was finally delivered on 4 July 2018. Drawing a distinction between the role of a Governor and the Lieutenant Governor, the Supreme Court said that since Delhi enjoys a special status and is not a full state, the LG is bound by the aid and advice of the Council of Ministers in all matters except those relating to public order, land, police and other services.

SC Ruling on Delhi's PowerTussle

Comprising of CJI Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, the Supreme Court bench pronounced its verdict on 4 July 2018. One was read by CJI Misra, while two others were delivered by Justices Chandrachud and Ashok Bhushan individually.

Reiterating that the Centre enjoyed executive powers over Delhi, CJI Misra said that Delhi was not a full state. However, he warned the Union against encroaching on the powers of the elected government and stated that the LG needed to work in harmony with the government of Delhi and not delay decisions on legitimate issues. “The L-G cannot act as an obstructionist. The concurrence of the L-G in all matters is not necessary”, he said.

Justice DY Chandrachud also supported this viewpoint, saying that the LG cannot take decisions independently except in the three matters specified. He also stated that the LG must remember that the real power lies in the hands of the elected representatives who are answerable to the people and therefore cannot stall every decision. However, he also noted that a balance of power is vital in Delhi keeping in mind its special status as the national capital.

This was further backed up by Justice Ashok Bhushan, who said that the LG needed to act in tandem with the “aid and advice” provided by the council of ministers, while exercising his exclusive power in the necessary circumstances.

Both the AAP and BJP pronounced themselves happy with the verdict, with Kejriwal hailing it as a victory for democracy. Delhi Deputy CM Sisodia termed it a landmark judgment, saying that it would mean that work would no longer be stalled. The Delhi BJP chief Manoj Tiwari also welcomed the judgment, saying that now the Delhi government would be required to act in accordance with the Constitution.

Would Statehood Work for Delhi?

Control Over Bureaucrats

In the current scenario, the Delhi government has no control over the recruitment and the functioning of its bureaucratic officers. As a consequence, it also cannot impose disciplinary actions against unscrupulous officers. This power is vested with the L-G.

This, the Delhi government argues, leads to a lack of accountability, resulting in delays in the implementation of schemes. Ideally, an elected government should have the power to make its own decisions about officers and have a degree of control over them.

Other states can choose their own officers through the Public Service Commission, something Delhi would also be able to do if it were given statehood.

Multiple Authorities

There are too many different degrees of power, too many channels of communication and far too much overlap in decision-making in the current Delhi administration, according to Pranav Jain, who works with the AAP government.

There is the elected Delhi Government; three Municipal Corporations (East, North and South); the New Delhi Municipal Council (NDMC) which caters to the New Delhi and Lutyens’ Zone Area and the Delhi Cantonment Board (DCB) which caters to the Delhi Cantonment Region exclusively. The DDA is vested with all matters pertaining to land in Delhi; the L-G is responsible for matters pertaining to law and order, police, land; and the Government of India (GoI) disposes of a variety of functions across the board.

Statehood, he says, would resolve this issue.

Finances Will Get a Boost

According to Ambar Sharma, a public policy expert, as a state, Delhi will get a larger share in the Finance Commission’s devolution of taxes. The 14th Finance Commission had increased the divisible pool of taxes from 32 percent to 42 percent, but Delhi, as a UT, got no portion of it. Moreover, as a state, it will get land revenue, a big component of state revenues.

According to Manish Sisodia, the “people of Delhi will benefit tremendously if Delhi were to be declared a full state [...] Today, Delhi contributes about Rs 1.3 lakh crore in direct taxes to the Centre and receives just Rs 325 crore as Central grant. If Delhi were to be a full state, the Centre will be bound to make transfers as per recommendations of Union Finance Commissions, which would mean at least Rs 50,000 crore being channelled back for Delhi’s development,” said Sisodia.

The Need of the People

Atishi Marlena, a member of AAP’s Political Affairs Committee, has said that if the Central government wants to keep the safety of the Lutyens Delhi area in its own hands, a solution could be that the Centre could have special powers with regard to the NDMC and the Delhi Cantonment area. The police, water and power supply, all administration of this area can be independent, while the rest of Delhi should be treated as a complete state.

Foreign Capitals

One of the arguments for the move is that many other capitals across the world, while not being states per se, do have control over legislative, financial and administrative bodies. At the moment, however, the Delhi government cannot make integral decisions with regard to the national capital territory area.

How Practical is Statehood for Delhi?

1. Split of Power
Statehood will also mean the bifurcation of the DDA, the MCD and even the Delhi Jal Board. (DJB) Additionally, since Delhi is the capital, a part of the these agencies will be under state control and the other part under the centre’s control. This could potentially upset the working of the agency, leading to a breakdown.

Moreover, as senior editor R Jagannathan notes, granting statehood would mean allowing the government jurisdiction over offices, establishments, cantonments and services that come under the central government, which, according to him, would be unacceptable to the government in power. Those against statehood say Delhi itself will have to be bifurcated if one part of it is to become a state.

This was one of the suggestions of the 1955 States Reorganisation Committee report, according to The Indian Express, which said, “It has… been suggested that New Delhi should be regarded as the national capital over which the union government might have full control. The real issue, therefore, so far as the future of Delhi is concerned is whether a line of demarcation should be drawn between New Delhi and Old Delhi and the two units be placed under two separate administrations.”

2. Finances Could Be Hit

If the Delhi government has to take over the running and expenses of the DDA and the Delhi police, there will be an incremental hike in its budget. This could mean higher taxes, excise duties, higher entry fees (into the city), higher parking rates, bus fares and more expensive metro rides, directly affecting the residents. Delhi may also lose the ability to bear the cost of police salaries and the pension liabilities of all city government employees, which are at the moment the Centre’s responsibility.

Jagannathan argues that if power and water have to be bought from outside and shared with the central administrative district run by the home ministry, that would mean it cannot be subsidised. The alternative, which is to to set up Delhi’s own power plants, which would be very expensive. Consequently, it will be goodbye for Kejriwal’s dream of cutting tariffs for power and giving free water to everyone.

3. Security Concerns for the NCT

If AAP’s statehood demanded is granted, security of all central government departments, ministries and even embassies will fall in the hands of the state government. This could turn into a security nightmare. Another point, notes Shailja Chandra, former secretary to the Government of India, is that once the state government comes in control of the police, it may (mis) use it to target the Centre.

In many states, political influence is known to be used in police postings. The main issue here is the potential political handling of delicate subjects.

4. Land Allocation

Chandra argues that Delhi, as the capital, needs to reflect the best of the nation, which may become a problem if the local government is able to make decisions in this regard. Land-use, zoning plans and building regulations need to be managed in tandem with the standards expected of a capital city. But the local government may choose to satiate local demands, which may not be the best for Delhi as the capital.

Political Doublespeak

The AAP is the only party in recent times to have seriously taken up the cause for statehood. It was among their electoral promises in 2015 and to that effect, the party even passed the State of Delhi Bill, 2016.

Following the nine-day sit-in protest at Lieutenant-Governor Anil Baijal’s house over is refusal to intervene in the “strike” by IAS officers, Chief Minister Arvind Kejriwal reaffirmed his party’s resolve to get statehood for Delhi.

But he was not the first.

Both the Congress and BJP who have articulated his demand, but the fact remains that statehood was among their other pre-poll calling cards just to woo voters.

Up until 2014, the BJP government was in full support of statehood, after which it too went silent on the issue. The Congress too, despite promising statehood multiple times, has not delivered yet.

In 1998, former Delhi Chief Minister Sahib Singh Verma’s administration prepared a full draft for statehood. While the bill was sent to the government for comments, no action was taken. Afterward, the promise that Delhi would become a state featured in the BJP’s manifesto for the 1999 Lok Sabha polls.

In August 2003, under LK Advani, the State of Delhi Bill, 2003 was introduced in Parliament. However, it was not passed then because of a clause that would allow the President to have the power to make binding directions on the Delhi government “for good governance and proper development of the State”.

The promise featured again in the BJP’s campaign in the 2013 polls. However, in 2016, it appeared to have gone back on the promise, with then-Delhi L-G and BJP member Kiran Bedi stating in a newspaper that “full statehood is not the main issue right now”.

Manoj Tiwari, Delhi chief of BJP, also played turncoat on the issue in 2018, saying that full statehood to Delhi could not be granted in totality, adding that the AAP-led Delhi government should hold an all-party meeting to deliberate upon the issue.

In 2015, a top home ministry official said, “Full statehood was not granted to Delhi even at the time when the BJP was in power in both the Capital and the Centre. Nowhere in the world does the country’s capital city enjoy a full statehood status”, effectively ruling out granting full statehood to Delhi, despite their many promises.

As for the Congress, it has spoken in two different voices on the issue. Its election manifesto in 2015 mentioned full statehood for Delhi. However, Ajay Maken has been quoted on other occasions saying that any party in power would demand statehood. Moreover, he also stated, “But Delhi is not just another state....When I was in the union government, it became very clear that statehood for Delhi is impossible and rightly so.”

In September 2002, the then-CM of Delhi, Sheila Dixit, forwarded a Delhi Assembly resolution asking for full statehood. Dixit also noted at the end of 2013 that the “city would have witnessed better development had my government not been shackled by the present governance structure of Delhi characterised by a multiplicity of agencies and authorities”.

But in June 2018, she said “We had understood that it is not possible because it is the country’s capital, so the Centre will not give land and police to us.” She also added that Kejriwal must understand that Delhi is a Union Territory, and that he cannot have a governance model like Haryana and UP.

The Origins of the Demand

The issue first arose in 1947, when the Pattabhi Sitaramayya Committee recommended that Delhi, apart from having a L-G, should also have a legislature with limited powers. But Jawaharlal Nehru, as well as B.R Ambedkar, differed with the committee’s recommendations; Congress leaders never took a stand on the issue at the time, despite demands.

In 1952, Delhi was a Part C state. At that time, the Constitution of India recognised three types of states – Part A, Part B and Part C). Delhi also had a Legislative Assembly and a chief minister. The chief minister did not have control over the police, including the Railway Police, land and buildings, but also over public utilities, sanitation, water supply etc.

In 1956, however, following the recommendations of the 1955 State Reorganisation Committee, there was a re-organisation of boundaries, leading to the formation of 16 states and three Union Territories. Delhi was declared a UT, since its structure did not match that of a state and did not follow a uniform governance. Along with this, its Assembly and the post of chief minister were scrapped. The Chief Commissioner was made the sole overseer of Delhi’s governance.

In 1966, the nomenclature of the Chief Commissioner’s position changed to L-G, while also adding a Metropolitan Council and an Executive Council to the structure of governance. Neither, however, could make binding recommendations on the L-G.

Over the next few decades, a number of bills were introduced to try to change this form of governance in Delhi, but they failed to be passed. In 1990, Home Minister Mufti Mohammad Sayeed introduced the Constitution (72nd Amendment) Bill to grant statehood to Delhi, tentatively titled the Capital State of Delhi. However, this bill lapsed.

In 1991, finally, after an amendment to Constitution in the form of Article 239A, Delhi was allowed a popularly elected Assembly and a CM. However, under the same article, the governance structure was made such that the CM did not have power over three reserved subjects – police, public order and land.

However, in 1998, a notification issued by the Union Home Ministry made it mandatory for the L-G to consult the CM with regard to the three reserved subjects, as well as for services, which means control over the bureaucrats. At the time, the the NDA government was in power at the centre, headed by BJP’s Atal Bihari Vajpayee; the government in Delhi was also led by BJP at that time.

In 2015, the Union Home Ministry, which was led by the BJP, issued another notification, which superseded the 1998 one. This effectively allows the L-G to choose whether to consult the CM on any issue regarding the three reserved subjects and services. This deprived the Kejriwal-led AAP government in Delhi of any control over the Delhi bureaucrats. Appealing to the Delhi High Court against the notification only added insult to injury, with the Chief Justice G Rohini and Justice Jayant Nath upholding the 2015 notification and even adding that the L-G was not bound by the aid and advice of the Council of Ministers, effectively making him the highest authority in the capital.

The decision which was challenged in the Supreme Court. The decision was reserved in December 2017, is awaited.

(With inputs from Hindustan Times, The Indian Express and India Today.)