Delineating the Delhi resolution

In a majority of three judges, CJI Dipak Misra, AK Sikri and AM Khanwilkar, the much-awaited Supreme Court verdict in the Delhi State government versus Centre-appointed Lieutenant Governor conflict stated that the LG cannot interfere in every decision of the elected government. Justice Chandrachud in his minority voice says that the LG is merely a titular head.

The verdict takes a middle path, tilted towards the elected government, and notes that neither authority should feel it has been lionised. With mutual respect as key, the LG must work together with the elected Council of Ministers and respect their decisions. The LG's concurrence is not always required. The LG, further, cannot act mechanically and refer all decisions of the Council to the President. The LG's role cannot be of an obstructionist. The Court must adopt an interpretation of the Constitution which is in consonance with democratic principles. All three organs of State must stay rooted in the Constitution.

CJI Dipak Misra said that the LG cannot act independently and must take advice from the Council of Ministers. Subsequently, the Council has to inform the LG of its decisions. The CJI says that both the state and the Union must act in harmony and enjoy a healthy relationship. Expressing disagreement over power tussle in Delhi, CJI Misra said that a state fails when its governance fails.

Real power must lie with the elected government, said the Supreme Court, adding that the LG is not independent and Delhi is not a full state. While the Parliament has the power to make laws for Delhi on subjects in the state and concurrent list, the elected government can also make laws on all subjects expect land, police and public order. If the Parliament makes a law, the executive power of the state must conform to the law made by the Parliament. The Supreme Court also observed that the LG must act on the aid and advise of the Council of Ministers to implement the President's decision. The judges also said that the lieutenant governor hasn't been entrusted with independent decision-making power and that the state should enjoy freedom from unsolicited interference. "Popular will can't be allowed to lose its purpose," it said. Interestingly, though the judges differed on the extent of the powers of the LG, they were all unanimous on the primacy of the elected government.

Bed of conflict

In August 2016, the Delhi High Court upheld Article 230 of the Constitution stating that the Lieutenant Governor remains the administrative head of the National Capital Territory. Under Article 239 of the Constitution, every Union Territory is under an administrator (which would be the position of a Governor). The administrator governs on the directions of the President. After amendments under Article 239AA, Delhi was given special provisions and was deemed as a National Capital Territory. According to 239 AA, the administrator of the NCT was the Lieutenant-Governor. The LG, who is to be appointed by the President, will be advised by a council of ministers.

After hearing arguments from both the AAP government and the Centre for 15 days across over four weeks, the Supreme Court reserved its verdict on December 6, 2017, on a clutch of pleas on the issue of who enjoys supremacy in administration. Wrapping up the rejoinder submissions in the Supreme Court during the hearings in 2017, AAP's counsel Gopal Subramanium told the bench that the Chief Minister and the council of ministers had the legislative power to make laws as well as the executive authority to enforce the enacted statutes. Had that not been the intention, there was no need to frame Article 239AA (which deals with power and status of Delhi under the Constitution), Subramanium said.

Immediate fallout

Rejoicing is underway in the AAP camp as can be gathered from the tweets and statements of their leaders down the line. CM Kejriwal tweeted positively while both BJP and Congress have been silenced for now. Sheila Dixit, former Delhi CM, repeated her old stand, "Delhi is not a state so both Delhi government and LG should work in tandem." And, there is no official reaction from the LG either.

Interestingly, the IAS officers' forum welcomed the SC verdict. "Civil servants don't belong to any political party….Supreme Court is the highest court in India and it has reiterated Constitutional provisions. This is a victory for the Constitution and the express provisions of Article 239 AA," says K Mahesh, senior bureaucrat and president of the Delhi Administrative Officers' Academic Forum. The AAP government had alleged a 'strike and non-cooperation' by the IAS officers earlier and the CM had gone on a nine-day long dharna at the LG's house asking for his intervention to end the strike.

There are several pending key welfare measures that are now expected to gain momentum: expansion of 165 Aam Aadmi Mohalla Clinics to the promised 1000 across Delhi, door-step delivery of government benefits and services to Delhi's citizens (ration, birth and death certificates, etc), CCTVs in key areas and inside government buses, expansion of state-funded education infrastructure, legislation of the Jan Lokpal Bill to get an ombudsman against corruption in public offices and, also, the Swarajya Bill which allows mohalla committees to decide on local development work and certify their quality and completion.

Long-term impact

On last Sunday, July 1, AAP had organised a huge rally to demand Delhi's statehood, also making it its major electoral plank for the 2019 Lok Sabha and 2020 Vidhan Sabha elections. AAP volunteers have also embarked on a door-to-door campaign to get one million Delhi citizens to ratify their demand of statehood. This was AAP's electoral promise in 2015 – and, to this end, the AAP government has passed a resolution in the state Assembly calling for full statehood while passing a draft bill for the same.

The draft bill passed by the AAP government in the Assembly says that Delhi being the national capital can be divided into two parts. What is commonly known as Lutyens' Delhi and is administered by the NDMC Act, should be under direct control of the Central government, given the sensitivities involved and the experience of national capitals world over.

This resolution also notes that the rest of Delhi can no longer be denied its full statehood right. It notes that the bill introduced by then deputy prime minister and home minister, LK Advani, in the Lok Sabha on August 18, 2003, and fully endorsed by the Parliamentary Standing Committee on Home Affairs, then headed by Pranab Mukherjee, has to be the guiding document.

The present Supreme Court verdict, emboldening the role of the elected government, will indirectly fuel the movement of complete statehood for Delhi minus the New Delhi NDMC area, the seat of the Central government and international bodies and embassies.

Fundamental Constitutional questions

The cardinal questions that the AAP government's continued conflict with the Centre has thrown up are fundamental to the functioning of an electoral democracy. Does an elected government have the right to make policies and implement them? With this question being decided in favour of the elected government now, the statehood movement is bound to move ahead.

Delhi is governed by an elected state government, a nominated Lieutenant Governor, Delhi Development Authority under LG, SDMC under Centre, all land under Central Urban Development Ministry, Delhi Police under Central Home Ministry, services of all staff under Central Home Ministry, Delhi Cantonment under Defence Ministry, and civic affairs under other Municipal Corporations. This maze of multiple agencies with overlapping authorities is a natural breeding ground for misgovernance, miscommunication, and noncooperation.

Response of the opposition

Interestingly, unlike during the Kejriwal dharna of the winter of 2014, this time, in the summer of 2018, a plethora of regional parties, significantly SP, RJD, JDU, JDS, RLD, NCP, TMC, TDP, TRS, DMK, CPI, and CPM have expressed complete support to the dharna of the AAP CM on this Centre-state conflict and independence in functioning of the elected government – Congress is understandably on the same side as BJP. Congress stance stems from the fact that AAP has decimated Congress to come to power, is the major challenger of Congress in Punjab and is focussing on building its organisation bottoms-up in states which are bipolar between Congress and BJP. But, the current stoicism of Congress would rather make it suspect in the eyes of various regional parties and is not in the interests of its 2019 plans.

The Supreme Court verdict today has surely enhanced the stocks of AAP among the regional opposition of India, and the Congress will emerge as the biggest loser if it is seen as antagonistic to the cause of Delhi statehood.

(Prof. Ujjwal K Chowdhury is a former Dean of Symbiosis and Amity Universities. The views expressed are strictly personal.)