Collaborate to repair Delhi’s long-standing governance quandary

Any attempt to resolve the governance conundrum in Delhi requires us to first understand the legal and constitutional history of the National Capital Territory

The months-long tussle between the Centre and the elected government of Delhi has sparked concerns about the future of federalism. But any attempt to resolve this conundrum requires us to first understand the legal and constitutional history of the special status of the National Capital Territory (NCT).

Will the ordinance stand? The Centre can overturn a judicial ruling through legislation. (PTI file)

Delhi is a paradox. Its multifaceted governance system is more complex than many other megacities on the planet. In 1991, the 69th amendment to the Constitution granted Delhi special status based on the 1987 recommendations of the S Balakrishnan Committee, which examined various demands for statehood. The amendment renamed the Union Territory of Delhi as the NCT of Delhi. Article 239AA excluded from Delhi’s jurisdiction public order, police, and land-use planning. The complexity was multiplied because the Union government became responsible for big chunks of the city’s administration. For instance, the Delhi Police and Delhi Development Authority report to the central government, rather than the government of Delhi. Additionally, there is a lieutenant governor (LG) appointed by the President on the advice of the Centre. The President assigns the LG discretionary powers to carry out certain judicial or quasi-judicial functions that lie outside the scope of the assembly.

In 2018 after a protracted political row, the Supreme Court (SC) confirmed that the Centre had exclusive executive power over Delhi’s police, land, and public order, but clarified that in all other matters, the Government of NCT of Delhi enjoyed executive power. Its Constitution bench judgment last month again reiterated that the elected government held control over domains other than the ones explicitly mentioned above. The Centre has now brought an ordinance to effectively roll back these changes.

At the core of this debate are interpretations of what powers a state and a Union Territory (UT) can enjoy. In the larger understanding of constitutional federalism, UTs are not states. The Constitution only provides the distribution of legislative powers between the legislatures of the states and Parliament. There is no category of legislative power distribution concerning the legislative assemblies of UTs.

Entry 41 of the List-II (state list) grants a state government the authority to enact laws regarding state public services and state public service commission. So, any measure of executive authority to Delhi on services might be seen as granting the NCT of Delhi legislative and executive authority comparable to that of a state. In the backdrop of political rivalries between the parties ruling the Centre and Delhi, this is a key reason for the confrontation; unfortunately, successive judicial interpretations of the 1991 GNCTD Act have failed to resolve this conflict.

Another point of consideration is Article 309 of the Constitution. The provision deals with the recruitment, and conditions of service, of people serving the Union or a state. It makes a clear distinction between Centre and state services. The UT’s civil services are seen as belonging to the Centre.

The controversial promulgation of the ordinance has stoked a political debate, especially because it aims to establish the National Capital Civil Service Authority (NCCSA) – comprising the chief minister (CM), chief secretary and principal home secretary – for the first time. This panel will provide the LG with suggestions on transfer, assignment, vigilance, and other related issues, but the Delhi government has pointed out that the CM can be effectively overruled.

Will the ordinance stand? The Centre can overturn a judicial ruling through legislation. But such a law cannot merely contradict the SC’s verdict, it must also address it’s underlying reasoning. Whether this particular ordinance is legally sound is for the top court to determine.

But beyond the immediate political debate are important questions of whether the administration of the national Capital can be made better by granting it statehood. Many capitals across the world – such as Canberra, Brasilia, and Washington, DC – show that these cities have special administrative needs and can function as federal districts. Instead of granting full statehood, it could, therefore, be preferable to strengthen the consultative mechanism between the Centre and Delhi government, resolving decades of conflict.

Establish a power structure that grants the local government control over legislative, financial, and administrative bodies. In an age of cooperative and competitive federalism, we can all aspire for collaborative federalism which is non-hierarchical for efficient governance.

Rekha Saxena is professor at the Department of Political Science, University of Delhi.

The views expressed are personal