Division of power in Delhi

The ongoing tussle between the Delhi government and the Centre took a fresh turn on Monday, when the Delhi High Court said that the Lieutenant Governor must act on “the aid and advice of council of ministers”. The court also said that the “mandate of the people must be respected by the Lieutenant Governor (LG) in respect of <g data-gr-id="28">matter</g> which fall within the domain of the legislative assembly”. In past editorials, this newspaper has argued the same. The high court’s observations come at a time when the Aam Aadmi Party (AAP) led government in Delhi is considering challenging the recent notification of the Ministry of Home Affairs. The notification had stated that LG was the “administrative head” of Delhi and “services” are out of the AAP government’s purview.  

Our editorials in the past have argued that if the Delhi government cannot appoint its own officers, then why have a democratically elected government at all? Noted legal experts like Gopal Subramaniam and Sanjay Hegde have also questioned the veracity of the Centre’s claims. Many have also argued that in a democratic set up there cannot be two reporting authorities as it would lead to the type of confusion and conflict that the administrative machinery of Delhi has witnessed during the past few week. The Delhi government, as per law, does not have executive control over the city-state’s police, law and order and land.

Therefore a key aspect of the Delhi High Court judgement, which the Centre will challenge, is its position on the Delhi government’s Anti-Corruption Bureau (ACB). In dismissing the bail application of a Delhi constable, who was charged with taking bribes under the Prevention of Corruption (PC) Act, the court argued that since the “functions of the Delhi police personnel substantially and essentially relate to the affairs of the GNCTD (Government of National Capital Territory of Delhi)”, the ACB of the Delhi government has the “jurisdiction to entertain and act on a complaint under the PC Act”. As per news reports, the Judge relied on the provision of divisions of power between Centre and States (as stated in Schedule VII of the Constitution) to rule on the elected executive’s supremacy over the LG. 

However, the National Capital Territory of Delhi (NCTD) is a constitutionally created special category, which is neither a State nor a Union Territory. The court’s judgement on the question of public order and police, both of which fall within the Centre’s domain, has given the ongoing tussle a new twist.

The tussle, however, highlights the current anomaly prevalent in the current administrative set-up. An exhaustive debate on the issue must take place at the executive level because if an elected legislature is not vested with executive powers, then elections to the Delhi Assembly seem rather pointless. The AAP government, through its challenge to the Centre, is attempting to address this very anomaly. There is a city that exists beyond the confines of Lutyens’ Delhi and its embassies. The AAP government, therefore, should be allowed to function independently. Although many in the media have billed this recent confrontation as a fight between the AAP and the BJP, one should not lose focus of the larger principle at stake here.