Delhi: A case of an elected government being rendered toothless

The Aam Aadmi Party (AAP) government in Delhi suffered a body blow on Monday (February 27) after a special CBI court sent Deputy Chief Minister Manish Sisodia to five-day CBI custody in connection with the alleged liquor scam (Delhi Excise Policy, 2021-2022, which had been scrapped).

The arrest comes days after the Delhi government asked officials to stop taking direct orders from the Lieutenant Governor (L-G) VK Saxena. The order also warned those violating the directive of strict action.

According to the statement, Sisodia cautioned officials that the government would view the implementation of such orders seriously because any directive straight from the L-G is a violation of the Constitution and directives of the Supreme Court. With the running tussle between the Delhi government and the office of the L-G, the bureaucracy in the city is feeling the squeeze. Can this order by the state government be seen as the last attempt to assert its powers as a constitutionally elected government — a role that has potentially been usurped by the Centre through the L-G?

Also read: Delhi liquor scam case: Manish Sisodia moves SC; bail plea hearing at 3.50 pm

The Delhi government’s order came at a time when the Delhi government and the L-G’s office are engaged in a tussle over various issues — the nomination of the aldermen to the MCD House, the selection of nominees to the Delhi State Haj Committee, and a recent proposal to send Delhi school teachers to Finland for training. The “teacher training programme” has become one of the most contentious issues, with Sisodia once again requesting L-G VK Saxena to immediately approve the proposal.

Attempt to render an elected government toothless?

While the SC order of 2018 is comprehensive and highlights the “exercisable domain” of both the elected government and the L-G, the latter, backed by the Union Home Ministry, has refused to hand over to the government control of the services department, which deals with the posting and transfer of bureaucrats.

The L-G is seen to take advantage of a particular portion of the order that says the L-G cannot exercise his power to refer the state government’s decisions to the President in a mechanical manner but did not clarify which matters could be referred. In effect, the L-G’s power to make references to the President remains discretionary.

GNCTD Amendment Act: Depriving people of an elected government?

The Government of National Capital Territory of Delhi (GNCTD) Act provides that the term “government” referred to in any law made by the Legislative Assembly shall mean L-G. The new provisions authorise the L-G to withhold consent from bills that, in his judgment, may be “incidentally” outside the scope of the Assembly’s legislative powers.

Also read: Manish Sisodia’s arrest: Uncertainty looms over Delhi govt’s key projects

Thereby, it empowers the L-G to interfere in the day-to-day administration of the National Capital Territory (NCT) by introducing the requirement of obtaining the L-G’s views before executing a decision of the council of ministers under any bunch of laws that are to be specified by the L-G, through general orders.

The Act has increased the powers of Delhi’s nominated L-G manifold while rendering the elected government and Assembly toothless.

Demand for full statehood for Delhi

The demand for full statehood for Delhi has been consistently raised by all political parties, even though the NCT may necessitate differential treatment. This consistent demand has led to the insertion of Article 239 AA (69th Constitutional Amendment Act of 1991, which introduced the dual system of governance in the NCT of Delhi) into the Constitution of India, establishing an elected legislature for Delhi. However, the GNCTD (Amendment) Act 2021 strikes at the root of these principles and renders null the democratic right of the citizens of Delhi.

The Centre will now have a more direct role in running the MCD, according to the amendments brought to the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation (Amendment) Act, 2022, has replaced the term “government” with “central government”. Before May 22, 2022, the three municipal corporations were under the office of Director (local bodies) in Delhi government’s Urban Development Department. The Home Ministry, which has supervised the unification and delimitation process, will have a much more direct role in running the affairs of the corporation.

Attempted overreach despite clear SC order

According to a 2018 order of the Supreme Court’s Constitutional Bench, the government of the NCT of Delhi has exclusive executive control over “transferred subjects,” except for three reserved ones — land, police, and public order. In the case of transferred subjects, the provision of Article 239 AA(4) provides that the LG may differ from the decision of the council of ministers on any of the transferred subjects.

Watch: Manish Sisodia’s arrest: What impact will it have on Delhi politics? | The Federal interview

However, this difference of opinion must be exercised through a process prescribed in rules 49, 50, 51 and 52 of the Transaction of Business Rules (TBR). The TBR, 1993 provides a composite and holistic perspective on the modalities that must be followed in the case of a difference of opinion between the L-G and the Council of Ministers.

Citing provisions of the TBR, the Delhi government noted in the statement that it is the duty of every secretary to ensure that the provisions of TBR are properly followed. It also added that the court ruling emphasised the importance of dialogue.

Administrative control vs functional control

While hearing a dispute between the Centre and Delhi government for control over bureaucrats, a Constitution Bench of the Supreme Court asked the Centre, “What is the point of having an elected government in Delhi if the administration of the national capital is supposed to be carried out at the beck and call of the Centre.”

Appearing for the Centre, Solicitor General Tushar Mehta said the Centre retained administrative control over bureaucrats but the “functional” control was left to the ministers in charge of the respective departments in which the civil servants served.

Probing the statement further, Chief Justice DY Chandrachud said such an interpretation would present an anomalous situation.

“Suppose an office is not discharging its functions properly. If the Centre retains the administrative control, that is, powers of appointments, transfers, postings, etc… the Delhi government will have no role? It cannot shift this officer and get someone else? Can that be?” the CJI asked the Solicitor General, seeking a reply.