Whose Delhi is it anyway:  A 360 view?

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AAP, Centre, Lt Governor

AAP, Centre, Lt Governor

‘Indianmandarins’ tries to dig deeper into the recent issue which has put the Delhi Govt, Centre and Lt Governor at logger-heads. Delhi High Court’s direction to respect people’s mandate and IAS Association’s executive committee’s (meeting held on Monday) urge for steps to insulate the civil services from political cross-fires give it more relevance to explore as ‘whose Delhi is it anyway’.

(By Rakesh Ranjan, Editor-in-chief, Indianmandarins.com; your feedback: indianmandarins@gmail.com)

Recent developments in the National Capital Territory of Delhi

The recent events in the government of NCT of Delhi over the innocuous issue of assigning the charge of Chief Secretary for a period of ten days have not only led to demoralization of civil services but also exposed serious fault lines that have developed in the management of civil services in a cadre known for efficient cadre management. While Ministry of Home affairs welcome notification dated 21st May 2015 clarifies that the government of NCT of Delhi has no executive power in respect of matters connected with “Services”, it seems implementation of Transaction of Business Rules earlier was a function of the comfort level between the Ministry and Chief Ministers. During the long tenure of the previous Chief Minister, posting and transfers of senior officers of IAS and DANICS were exclusively dealt by the previous Chief Minister. The Chief Secretaries had come to be accepted as Chief Minister’s “choices”, ignoring y merit and seniority. The real issue is whether these Chief Minister’s pets further the cause of good governance. Unlike States, in Union Territories Chief Ministers have no ready access to the career and vigilance records of officers. In an outlying territory, an officer charge-sheeted and arrested by CBI was allowed to look after the charge of Chief Secretary for more than two years.

In the recent appointment of acting Chief Secretary in Delhi, one wonders why the golden rule of giving charge to the next senior most officer available was not followed, ignoring lack of willingness of the officer concerned. More importantly, for the appointment of regular Chief Secretary, why the officers of 1980 and 1981 batches, already empanelled as Secretary to Govt. of India were sidelined in favour of an officer of 1983 batch empanelled as Additional Secretary during review. It would be appropriate if Ministry of Home Affairs empanel AGMUT cadre officers for various posts of Chief Secretaries and appoints, in consultation with the respective Lieutenant Governor and the Chief Minister, Chief Secretaries from officers in the panel only.

The administrative set-up for Delhi in recent times has been an exercise in balancing considerations of the adequate control of the federal government on the national capital for discharging its national and international responsibilities, and the democratic decentralization in governance.

Administrative set-up of Delhi since Independence

  1. After Independence in 1947, Delhi continued to be administered directly by the Government of India as a Chief Commissioner’s province, as provided under the Government of India Act, 1935. Dr. Pattabhi Sitaramaya Committee, that was constituted to report on the constitutional changes required in the governmental set up of Chief Commissioner’s provinces, recommended that the Chief Commissioner’s province of Delhi might be provided with a responsible government, subject to certain limitations. The Drafting Committee of the Constitution did not agree with the recommendation and provided for administration of Delhi, included as a part “C” states in the Seventh Schedule of the Constitution, by the President, acting to such extent as he thinks fit, through a Chief Commissioner or a Lt. Governor to be appointed by him, while leaving the provision of legislatures and council of ministers in the centrally administered part “C” states to the discretion of the Parliament under Article 240 (as it stood at the commencement of the Constitution).

2.2       The Parliament passed the Government of Part C States Act 1951, under which Delhi was provided with a council of ministers and a legislative assembly, to enact laws in respect of any matters in the State and Concurrent lists of the Constitution excluding the matters relating to Public order, Police, Municipal Corporation, other local authorities, improvement trusts and public utility authorities and Lands and buildings vested in or in possession of the Union. The provision of the legislative assembly in Delhi came to an end in 1956 after the States Reorganization Commission recommended administration of the national capital directly by the national government. Delhi was constituted as a Union Territory vide Constitution (Seventh) Amendment Act 1956 and became a direct responsibility of the Central government. A municipal corporation was constituted in April 1958 with the hope that the autonomous Municipal Corporation of Delhi would meet the political aspirations of people.

2.3       MCD could not fulfill these aspirations and the resultant demands for a new democratic set up led to the passing of The Delhi administration Act, 1966 providing for establishment of a Metropolitan Council with no powers to pass legislation, including any law for appropriating money from the Consolidated Fund of India. The Metropolitan Council did not have any power with regards to ‘reserved’ subjects of law and order, police, matters dealt by Home, Services, Land and Building departments and New Delhi Municipal Committee. The vociferous demand for Delhi statehood compelled the Central Government to refer the issue of Delhi’s governance to Sarkaria Commission, which later became Balakrishnan Committee on Reorganization of Delhi set-up. The report of this Committee in 1989 became the basis of the Constitution (69th) Amendment Act, 1991 and the Government of National Capital Territory of Delhi Act, 1991 under which Delhi is presently governed. The term of the last Metropolitan Council had expired in 1988 but was extended on year to year basis till 1991.

The National Capital Territory of Delhi

  1. Delhi, now called the National Capital Territory, continues to be listed as a union territory in the First Schedule of the Constitution of India. The Part VIII of the Constitution (Articles 239-242) deals with Union Territories. Clause (1) of the Article 239 provides that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him. Article 239AA specifically deals with the National Capital Territory and clause (1) of Article 239AA provides that the administrator of the National Capital Territory of Delhi shall be designated as the Lieutenant Governor.

Relation between the Lt. Governor and Council of Ministers in “transferred matters”

  1. As per Article 239AA(3)(a), the Legislative Assembly shall have power to make laws with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories, except matters relating to public order, police and land. The three matters of public order, police and land are referred to as the “reserved” subjects, while the matters on which the Legislative Assembly can legislate, “transferred” ones.

4.2       Clause (4) of the Article 239AA further provides for a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion. It is provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor to take such action or to give such direction in the matter as he deems necessary.

  1. It may be worthwhile to compare the analogous provision for Governors of States. Article 163 of the Constitution provides for a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. There is no proviso clause for difference of opinion between the Governor and his Ministers on any matter. There have been legal rulings regarding the “aid and advice” of the Council of Ministers being binding upon Governors, and so it should be in the case of Lieutenant Governor of NCT of Delhi, except for the proviso enabling the Lieutenant Governor of NCT of Delhi to make a reference to the President for decision in the case of a difference of opinion in a transferred matter.
  2. Section 44 of the Government of National Capital Territory of Delhi Act 1991 provides for making of rules by the President for transaction of business with the ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. Accordingly, Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 have been framed by the President.
  3. Rule 23 of the Transaction of Business Rules lays down the classes of proposals or matters which shall essentially be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders thereon, such as (i) matters which affect or are likely to affect the peace and tranquillity of the capital; (ii) matters which affect or are likely to affect the interest of any minority community, Scheduled Castes and backward classes; (iii) matters which affect the relations of the Government with any State Government , the Supreme Court of India or the High Court of Delhi; (iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V of Transaction of Business rules; (v) matters pertaining to the Lieutenant Governor’s Secretariat and personnel establishment and other matters relating to his office; (va) matters on which Lieutenant Governor is required to make order under any law or instrument in force; (vi) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence; (vii)  matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected with those; and (viii)  any other proposals or matters of administrative importance which the Chief Minister may consider necessary.
  4. Though Transaction of Business rules do not require all classes of cases to be essentially submitted to the Lieutenant Governor before issue of orders, there are enough provisions in these rules to provide complete oversight of the Lieutenant Governor on the business conducted by the government as the Lieutenant Governor is required under rule 55(2) to make a prior reference to the Central Government in matters likely to affect peace and tranquillity in the territory, or relations of the Central government with any State Government, Supreme Court of India or any High Court, affect the interest of any minority community, Scheduled Caste or backward classes. Under Rule 17, every department is required to submit weekly lists of important proposals or matters disposed of in the Department by the Minister and the Secretary and other Officers during the preceding week. The Lieutenant Governor may call for papers relating to any proposal or matter in any Department under Rule 19(5) and such requisition shall be complied with by the Secretary to the Department concerned. Rule 25 makes it obligatory for the Chief Minister to cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for. In practice, however, it would be in the interest of good governance for the government to submit maximum number of important cases to the Lieutenant Governor, who shall endeavour to minimize his difference of opinion through discussions in the matter, and, in case of difference of opinion with a Minister, referring the matter for discussion by the Council of Ministers, as provided under the rule 49. If differences persist, the matter must be referred to the Cental Government for decision of the President, as provided under Rule 50 Transaction of Business rules. There is no provision for the Lieutenant Governor to overrule the decision of a Minister or the Council of Ministers in a “transferred” matter.

Relation between the Lieutenant Governor and Council of Ministers in “reserved matters”

  1. Matters in which the Lieutenant Governor, Delhi is to act in his discretion are mentioned in section 41(1) of the Government of National Capital Territory of Delhi Act 1991, which provides as follows –

“The Lieutenant Governor shall act in his discretion in a matter:

  1. a) Which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers and functions are entrusted or delegated to him by President,
  2. b) In which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions.”
  3. The notification no. S.O.1368(E) dated 21st May 2015 issued by the Union Ministry of Home Affairs provides that the Lieutenant Governor of the National Capital Territory of Delhi shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ exercise the powers and discharge the functions of the Central Government, to the extent delegated to him by the President from time to time.

Relation between the Lieutenant Governor and Council of Ministers in matters relating to “public services”

  1. As per Article 239AA(3)(a) of the Constitution, the Legislative Assembly of Delhi shall have power to make laws in respect of any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories (emphasis supplied). Entry 41 of the State List relates to “State Public Services and State Public Service Commission”. The National Capital Territory of Delhi does not have any public service of its own. All India Services of IAS, IPS and IFS have joint cadres of AGMUT and are managed by Home and Environment & Forest Ministries. Similarly, DANICS and DANIPS are joint cadres managed by the Home Ministry. Thus, the National Capital Territory of Delhi does not have its own State Public Services. As Delhi Assembly has no powers to legislate in respect of entry no. 41 of the State List, there is no executive power in respect of “service” matters since executive power is co-extensive with legislative power.
  2. The notification no. S.O.1368(E) dated 21st May 2015 issued by the Union Ministry of Home Affairs provides that The Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of “Services” whenever he deems it appropriate.
  3. As per Rule 46(3), all correspondence with Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor.
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