INTRODUCTION
Delhi became the capital of British India in 1911. After Independence, this status as capital continued, but Delhi came to be known as ‘sui generis’ or a class apart. Through the evolution of case laws and legislations, it is seen that the tussle for administrative control over Delhi has been never ending. Delhi being of importance to national security, the Union is reluctant to cease any executive control. However, the residents of Delhi do have democratic aspirations, and the Legislative Assembly has a collective responsibility to the same. From the first Delhi Government in 1951 to the latest government in 2020, conflict between the Government of the National Capital Territory (NCT) and the Union Government has created waves across the political and legal landscape of India. Through the administrative law principle of delegated legislation, and its evolution, this paper aims to study this sui generis position of administration of Delhi.
IMPACT OF IN RE DELHI LAWS: THE LASTING LEGACY
In Re Delhi Laws[1] is seen as the holy grail of Indian administrative law. And while it made a lasting impact on the administration of India, it also impacted the administration of Delhi.
The background to the case is fairly simple, it was whether the delegation of powers to Executive agents by the legislature was valid or not. Due to the separation of powers principle in general administration, it was important to flag if the administrative delegation is ultra vires. While the case deals with all three acts, the main focus of this paper was to see what the authors of the judgement said about Delhi, and what was their lasting impact of on Delhi’s Administration.
The validity of Section 7 specifically of the Delhi Laws Act, 1912 was contested.[2]
The background to Delhi that Justice Kania provides is a beneficial background for this paper too. The Province of Delhi was carved out of the Province of Punjab, to be overseen by a Chief Commissioner, and according to Section 2 of the Act, the laws in force in Punjab were the laws that were to continue operating in Delhi. Delhi however at the time did not have its own legislative body, and it was undisputed that the Chief Commissioner had the power to legislate. Section 7 of the Act thus enabled the Provincial Government to extend any restrictions and modifications of any law, central or provincial, it thought fit to Delhi, by issuing a notification for the same. This modified legislation/ restriction would come into force from the date of the notification[3].
Justice Kania held that the law could be intra vires to the extent that it allows for the extension of a Central legislation. However, it is ultra vires for allowing the extension of Provincial legislations, given that they were made keeping in mind the benefit of those provinces, and thus might not be suitable for the needs of Delhi. Additionally, extension of provincial legislation is an abdication of legislative powers by the Centre.[4] Thus J. Kania held the Act to be invalid and ultra vires.
Justice Kania’s justification that the Centre had the authority to pass laws controlling the legislation of Delhi was contextually relevant, given that Delhi at the time was neither a State nor Union Territory and did not have a legislative assembly. In the 1951 elections, Delhi had the status of a full fledged State. However, through the 1956 States Reorganization Reform, Delhi was reduced to a Union Territory, and did not have a legislative assembly until 1993. Thus in effect, administratively, even though Justice Kania’s opinion was a minority, given that it was in tandem with the majority about the Centre being allowed to create legislations for Delhi, it allows for the administration of Delhi to be in control of the Centre (Executive).
Justice Fazl Ali believed that the powers in the Act were neither unwarranted nor unprecedented. The Act gave the Governor General only the powers to adapt and modify the laws to the Province of Delhi, and in 1912, the Governor General had the relevant jurisdiction to do so.[5] Additionally, given that there was no Provincial Legislature at the time, the Act was passed keeping in mind specific intentions for Delhi.[6] Since there was no power of enactment, but only extension / adaptation / modification, the actual legislative authority was still vested with the Centre and no excessive delegation was occurring.
A pertinent observation in J. Ali’s ruling is that the power constitutionally vested with a legislative body to make laws cannot delegate that power to any other body or authority. The Sixty-Ninth Amendment to the Constitution of India vested the status of Union Territory to National Capital Territory, i.e Delhi, including the power to constitute a legislative assembly. However, as per Article 239AA[7], the power to legislate upon public order, police and land in Delhi is vested with the Union Parliament and not the Delhi Legislative Assembly. Given that the Parliament cannot in any instance further delegate the power pertaining to these to the Legislative Assembly, it leaves room for a lot of Executive control and interference in the administration of Delhi.
STATES RE-ORGANIZATION COMMISSION REPORT 1956: CENTRE IN THE LEAD
Influenced by the clash over functions and autonomy between the Chief Minister and the Union Home Minister in Delhi[8], in 1956 the States Re-Organization Commission held that the diarchal structure of governance mechanism caused a ‘marked deterioration of administrative standards in Delhi’.[9] Being the Federal Capital as well as essentially a city, the Commission believed that granting of the status of State would not be functionally or financially viable. Instead, the Commission recommended that the legislative assembly be abolished and Delhi be given the status of Union Territory, under direct Central Administration. However, it also suggested that there be an autonomous Municipal Corporation in order to ensure a certain level of representation of the needs of the residents.[10] In 1966[11], the Delhi Administration Act was enacted, which only had a mandate of recommendations for matters related to legislative, budgetary and development proposals, as well as matters referred by the Administrator[12]. This in turn meant that the benefits of separation of powers was a right denied to the people of Delhi, who were under the direct administrative control of the Central Administration.
BALAKRISHNAN COMMITTEE REPORT: REPRESENTATION FOR DELHI
In 1987, the Committee Report on the Re-organization of Delhi Set-Up (known as the Balakrishnan Committee Report) recommended that Delhi continue to be a Union Territory and not a State. This mostly because if Delhi were a State, then the only way for the Centre to have any Executive control on the administration or jurisdiction for legislation is through the imposition of Emergency, or other Special Circumstances as provided in the Constitution. This would hinder the discharge of the special responsibilities a Government has towards its National Capital, and also prejudice national interest, especially if there are opposing parties at the Centre and State levels.[13]
Thus the Committee recommended that the governance structure as laid down in Article 239 continue in order for responsible government.[14] The Administrator would exercise administrative functions on the aid and advice of the Council of Ministers, but given the exceptional nature of Delhi, a few modifications to these powers were also given. Firstly, the exercise of judicial or quasi-judicial functions would be independent of the aid and advice of the Council, in order to ensure the separation of powers. Secondly, the aid and advice requirement extends only to the matters that the legislative assembly has the jurisdiction to make laws for. Thus the Council of Ministers would not have jurisdiction to the matters that are excluded from the purview of the assembly, which in Delhi’s case is land, police and public order. Thirdly, the final word in the occasion of a conflict between the Council and the Administrator would be with the President and that is binding. This because as per Article 239, the ultimate responsibility of good governance of Delhi lies with the President, through the Administrator, because of which the latter has to take a more active role in the administration of Delhi than the Governor of a State. This could lead to messy conflicts between the Council and the Administrator, and thus the authority of the President is the best solution for resolution of such conflicts.[15]
The recommendations of the Committee are followed to this day, with Delhi having a legislative assembly that is elected through universal franchise. With the 69th Constitutional Amendment and the insertion of Article 239AA, the sue generis status of Delhi as a Union Territory with a legislative assembly was solidified. It is thus seen that although Delhi has the status of Union Territory, in effect its administrative autonomy is curbed due to extensive Executive interference. This given that delegation of legislative and executive power, through a properly established law, for a proper reason is accepted delegation, the Lieutenant Governor, as the delegate of the President has executive and legislative control over the National Capital Territory (NCT).
This influence was challenged by the Aam Aadmi Party(AAP) led Government of Delhi in 2018, as will be seen in the next part of the paper.
NCT v UOI 2018 AND REFERRAL: A NEW HOPE FOR DELHI
The background of this case arose due to a constant clash between the AAP led NCT government, and the LG regarding matters of agricultural land, control over the Delhi-Anti Corruption Bureau (ACB) and other Central Administrative Service positions of Civil Servants. The Delhi Government also set up multiple inquiry commissions. Given that all of these came under the administrative powers of the Executive, i.e the LG, as well as the Centre through the Home Ministry, the latter issued an Executive Order in 2015 explicitly barring the Delhi Government from discharging any functions related to Land, Public Order, Police and Services. The order also barred the ACB from taking cognizance of any offences against Central Government Employees. Regarding the inquiry commissions, Delhi Government was held to be an incompetent authority under Commissions of Inquiry Act, 1952 since Delhi was a Union Territory and not a State, and so was not an ‘appropriate government’ under the Act.
Challenging this Order, in 2016 the Government of the National Capital Territory of Delhi (GNCTD) filed a case in the High Court[16]. The Division Bench ruled in favour of the Union Government. Delhi was a Union Territory and so was under the complete control of the Lieutenant Governor, and any administrative action not approved by the LG was thus invalid. The Petitioners appealed in the Supreme Court.[17]
Going through the history of Delhi administration, and especially relying upon the Balakrishnan Committee’s findings, the five judge Constitutional Bench Supreme Court held that the Lieutenant Governor was bound to act by the aid and advice of the Council of Ministers of Delhi, unless exercising powers under Article 239AA(4)[18]. While exercising this power, the LG is not entrusted with any independent decision making powers, and must implement the decision of the President if referenced.[19] The power to refer a dispute to the President must be used only in sparing, exceptional circumstances. It was also held that a reading of 239AA gives executive as well as legislative powers, thus the executive powers of the Government of NCT (i.e the Council of Ministers) is co-extensive with the legislative powers of the Legislative Assembly of Delhi. Thus the executive power of the Council spans all matters the State or Concurrent List, barring those expressly excluded by Article 239AA,[20] while the executive power of the Union over NCT is only limited to the matters excluded by the NCT’s mandate.[21]
The specific issues that the High Court decided upon were referred to general Supreme Court benches. In a 2019 judgement[22], the division bench concurred with most of the judgements rendered by the High Court. Administratively, the aspect of police and the control of the Anti-Corruption Bureau was looked at. The Bench explicitly laid down that any issuance of an administrative or executive direction to the Police is an exercise of executive power related to the legislative entry pertinent to the Police.[23]The NCT thus could not contend that the functioning of the ACB is under it. Additionally, the Delhi Police Act, 1978 gives the power to control the Police to the Administrator, including administrative decisions.[24]
It is seen here that the Court loosely sticks to the rule of delegated legislation as laid down in Ram Jawaya Kapur[25]. Specifically, that only when an authority has legislative powers would it have executive powers, and thus administrative powers. Given that Delhi did not have legislative powers in the contested domains, it cannot made executive decisions for the same, and is bound by the Orders of the Centre.
CONCLUSION: BUT THE WINNER IS?
The evolution of the administration of Delhi has seen quite a few changes. The most marked shift in the reduction of the administrative powers of the Centre however, has been through the 2018 Supreme Court judgement. The Balakrishnan Committee held that the LG is the delegate of the President, and thus it is understandable that he would be more involved in the administration than the Governor of a state would generally be. However, the Constitutional Bench specifically mandated that the LG is not expected to exercise any independent administrative powers, and must either follow the aid and advice of the Council or the decision of the President. There is no in between room for the Centre to thus blur the separation of powers and override the GNCTD.
An additional component that becomes evident in tracing the evolution of the administration of Delhi is the interloping of constitutional law and administrative law. Even while answering the expanse of administrative powers of Delhi, the Constitutional Bench in NCT v UOI relied on constitutional principles to delimit LG’s powers. This is highlighted when the majority opinion said that while exercising powers under 299AA(4), the LG must keep in mind the standards of constitutional trust and morality, principles of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity, and, the nurtured and cultivated idea of respect for a representative government.[26]
Conversely, constitutional principles have been used by the LG to curb actions of the Council too. As recently as June 10th 2020, the LG overturned the GNCTD’s order that the government hospital beds will be reserved only for residents of Delhi in treating CoVID-19. The LG referred to various Supreme Court cases on right to health to hold that it is a fundamental right under Article 21 and thus the Government cannot restrict it.[27]
The impact of how delegated legislation is followed in India, however, ensures that the Delhi Government does not have full autonomy over the administration of Delhi. This especially since there are proper laws and acts, with specific reasons delegating the administrative authority of the Centre to the LG. Thus the tussle for Delhi currently lies in favour of the Centre.
BIBLIOGRAPHY
- In Re Delhi Laws v Union of India, (1951) SCR 747
- Constitution of India
- States Re-Organization Commission Report, 1956 https://www.mha.gov.in/sites/default/files/State%20Reorganisation%20Commisison%20Report%20of%201955_270614.pdf
- Delhi Administration Act, 1966 http://legislative.gov.in/sites/default/files/legislative_references/1966.pdf
- Committee Report on the Re-organization of Delhi Set-Up (1987)As referred to in https://www.prsindia.org/sites/default/files/bill_files/SCR_on_NDMC_amendment_Bill_2010.pdf and State (NCT) v UOI (2018) 8 SCC 501, Para 16
- State (NCT) v Union of India (2016) SCC OnLine Del 4308
- State (NCT) v Union of India (2018) 8 SCC 501
- State (NCT) v Union of India (2019) SCC OnLine SC 193
- Rai Sahab Ram Jawaya Kapur and Ors v The State of Punjab (1955) 2 SCR 225
- ET Bureau, LG Overrules CM Arvind Kejriwal; Delhi Treatment for All (Jun. 9, 2020, 10:29 AM IST), https://economictimes.indiatimes.com/news/politics-and-nation/delhi-lt-governor-anil-baijal-overrules-arvind-kejriwals-decision-to-reserve-hospitals-for-residents/articleshow/76264410.cms?from=mdr (last accessed on Jun. 12, 2020)
REFERENCES
[1] In Re Delhi Laws Act, 1912, (1951) SCR 747
[2]Id at 1 ¶ 1 “Section 7 read ‘The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification”
[3] Id at 23, 24 ¶ 47,48,49,50
[4] Id
[5] Supra note 1 as Per J. Fazl Ali at 39 ¶ 95
[6] Id at 42 ¶ 104
[7] INDIA CONST. art.239AA
[8]During the drafting stages of the Constitution itself it was decided that Delhi, being the Capital, would be administered by the President through a duly appointed Lieutenant Governor, thus no legislative assembly would be in place. Following this, the Government of Part C States Act 1951 was passed. Under the Act, a Council of Ministers for Delhi was provided for, although with a restricted mandate that did not include the authority to legislate and administer matters related to Land, Police (including Railway Police), Public Order and Municipal Corporation. While Delhi did have a legislative assembly, even with a Congress Government at the Centre as well as State level, there were clashes over functions and autonomy between the Chief Minister and the Union Home Minister.
[9] States Reorganization Commission Report (1956) at 164 ¶ 582
[10] Id at 168 ¶ 593
[11] Subsequently, the 1957 Delhi Municipal Corporation Act was enacted, however it failed to ensure an accountable representative governance system. Thus, in 1966 the Delhi Administration Act was enacted, which created an elected Metropolitan Council, as well as an Executive Council. The latter had four councillors appointed by the President. With no legislative authority, this Council was only an advisory body.
[12] Delhi Administration Act, 1966, No. 19, Acts of Parliament, 1966 at “Section 2(a) “Administrator” means the Administrator of Delhi appointed by the President under article 239”
[13] Committee Report on the Re-organization of Delhi Set-Up (1987) at ¶ 6.5.6
[14] A Head of Administration with a Council of Ministers would be responsible to a legislative assembly. This Council will report to the Administrator as laid down by Article 239, which is the President through the Lieutenant Governor (hereinafter LG). Id at ¶ 6.7.19
[15] Id at ¶ 6.7. 21
[16] State (NCT) v Union of India (2016) SCC OnLine Del 4308
[17] State (NCT) v Union of India (2018) 8 SCC 501
[18] Id
[19] Id at ¶ 245
[20] Id at ¶ 222
[21] Id at ¶ 224
[22] State (NCT) v Union of India (2019) SCC OnLine SC 193
[23] Id at ¶ 108
[24] Id at ¶ 109
[25] Rai Sahab Ram Jawaya Kapur and Ors v The State of Punjab (1955) 2 SCR 225
[26] Supra note 15 at 648, 649 ¶ 284.18, 284.19, 284.20
[27] ET Bureau, LG Overrules CM Arvind Kejriwal; Delhi Treatment for All (Jun. 9, 2020, 10:29 AM IST), https://economictimes.indiatimes.com/news/politics-and-nation/delhi-lt-governor-anil-baijal-overrules-arvind-kejriwals-decision-to-reserve-hospitals-for-residents/articleshow/76264410.cms?from=mdr (last accessed on Jun. 12, 2020)
ABOUT THE AUTHOR
Lalantika Arvind
Lalantika is a penultimate year BA.LLB (Hons) student at Jindal Global Law School (O.P Jindal Global University). She has a keen interest in the unique intersection of law, gender and human rights, and how it plays out in inter-state disputes and their resolution. She has previously been published on platforms like Centre for Women and Law and Social Change.
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