AAP versus L-G: Duality in governor’s role a constitutional design flaw that demands scrutiny

Editor's note: This article was originally published on 20 March. It is being republished in light of Parliament passing the  Government of National Capital Territory of Delhi (Amendment) Bill, 2021 on Wednesday. While the passage of the bill was called a 'sad day for Indian democracy' by Delhi chief minister Arvind Kejriwal, the Opposition in Parliament dubbed it 'unconstitutional' and claimed the Centre was practicing 'coercive federalism'.  

The Central government has tabled the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 which redefines the ‘government’ as the ‘Lieutenant Governor’ for Delhi. The Aam Aadmi Party, which won 62 out of 70 seats and established itself as the majority party in the National Capital once again in 2020, is resisting the amendment on the count that this move will empower an agent of the state and disempower a democratically elected government.

The governor’s post is as political as it is administrative in nature. The post of governor is a precarious one. In making a report to the President under Article 356 (1) the Governor acts not only as the head of the state but also as the representative of the Centre, bound by the oath to "preserve, protect and defend the Constitution and the law”. There’s fluidity in the role of a governor as perceived by the Constitution and tensions between the Centre and state, even if the two are under the control of the same party, are evident. Indira Gandhi was of the view that the governor should function as a representative of the central government and ever since, strong governments of all complexions have exploited the duality.

Delhi is a Union Territory and the role of the Lieutenant Governor here is wider and more hotly contested. Delhi was always a complicated governance state, but because earlier the Sheila Dikshit-led state government and Manmohan Singh’s Central government were both from the same party, any tussle in governance didn’t become apparent.

Ironically, though the same party – Indian National Congress — was in majority in both the state and the Centre, the then chief minister Sheila Dikshit had objected to LG Tajendra Khanna’s approach of involving private players in in-situ rehabilitation. “The Delhi Development Authority had in 2009 announced the in-situ development for the artists living in Kathputli Colony, but nothing has happened since,” she was quoted by The Indian Express on 22 October, 2012. At the time, both the Central and state governments were under one party. The multiplicity of autonomous bodies with their own political and financial ambitions is damaging to public good. The new set of amendments may heighten tensions between two systems that need to work closely with a sense of friendship and practicality for the benefit of Delhi residents.

The amendment will introduce a third sub-section to Section 21, stating that ‘The expression Government referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.’

After heated outbursts in and outside the Delhi Assembly in which AAP leaders repeatedly asserted that the services in the form of the bureaucracy, under the control of the L-G, had been hampering the execution of projects on ground, the Supreme Court intervened. On 4 July 2018, the Supreme Court pronounced its judgment in the case of Government of NCT of Delhi versus Union of India & Another which made it clear that the Lieutenant Governor of Delhi had no independent decision-making powers and was bound to follow the ‘aid and advice’ of the Delhi chief-minister-headed council of ministers of the Government of Delhi on all matters except those pertaining to police, law and order, and land. The Council of Ministers for Delhi, the judgement noted, had the executive power to take action in all the fields in which the Delhi legislative Assembly can pass laws. As per Article 239AA(3), this includes the State list and does not include land, police, and law and order and the subjects that fall under the Concurrent List.

Within these confines of the state list, the aid and advice of the council of ministers is binding upon the L-G. Under the Allocation of Business Rules, the council of ministers must keep the L-G informed at all times but does not need to seek his concurrence. If a situation arises wherein the LG has a difference of opinion with the Council of Ministers, then, subject to some conciliation measures provided for in the GNCTD Act and the Allocation of Business Rules, he holds the power to escalate the matter to the President of India. It is worth noting that the five judges on that bench had agreed that ‘any’ matter didn’t mean ‘every’ matter. However, this still vested the L-G with more powers than governors of states, to object to key government decisions. On the question of the anti-corruption branch, the dispute remained unresolved and this key whip that remained in the hands of the LG went against the popular perception that the 2018 judgement was in favour of the AAP-led Delhi government. In July 2018, Union of India had argued that Entry 41 specifically used the word "state", and that Delhi was not a state. Services were thus excluded from its ambit. And it is the services that enable execution of policies drafted by the legislative. Up until 2019, the political tensions between the BJP-run Centre and the AAP-led Delhi government were consistent.

DANICS, the Administrative Services for Union Territories, is not the typical IAS cadre. A transfer from a plum Delhi posting to more remote locations like Andaman & Nicobar or Daman & Diu could be perceived as a demotion. In August 2016, when Najeeb Jung was the LG, the Shunglu Committee had been constituted to scrutinise every file signed by the Delhi government and this had caused prolonged delays to AAP’s projects and several domain experts made part of the system were expunged. The Delhi Police continued the arrest of AAP MLAs, with over 18 of them in jail at various points of time, and 20 AAP MLAs serving important oversight roles pro-bono were scapegoated whilst Parliamentary Secretaries across India were free to draw salaries and other benefits.

The 69th Amendment introduced two new articles 239AA and 239AB respectively with regard to the administrative arrangements for the national capital. Subject to the provisions of the Constitution, the Legislative Assembly is vested with power to make laws for the whole or any part of the National Capital Territory 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 with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said entries:

‘Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power). Police (including railway and village police) and (Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.’

“Law can be made in any such matter is applicable to Union territories except matters with respect to Entries 1,2, and 18 of the State List and Entries 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18,” the text of the Article 239AA reads.

Thus, the Constitution has two categorical lists that outline a broader division of powers between the Centre and the state. In Delhi’s case, land and law and order is in the hands of the former.

In this context, is there a need for another amendment to further strengthen the powers of the Centre? And if so, can that decision escape the speculation of a deeply political motive? It also raises the question of whether the governor’s political neutrality is a pretence no government has called out.

Indira Gandhi reduced the governor’s institution to an agent of the party ruling at the Centre. In her last term, an interesting governor reshuffle took place. The Delhi Lieutenant Governor Jagmohan was made the governor of Jammu & Kashmir, while the incumbent BK Nehru was transferred to Gujarat and Governor of Gujarat KM Chandy was transferred to Madhya Pradesh, to replace Bhagwat Dayal Sharma. Former Union minister Bhishma Narain Singh was made governor of Assam and Meghalaya, replacing Prakash Mehrotra and former Maharashtra chief secretary PG Gavai became Delhi Lt-Governor. One wonders why governors of multiple states were reshuffled at the same time.

At the time, Congress (I) hardened its stance towards the National Conference government of Farooq Abdullah and expelled its former governor who had been shielding the state government from the centre on the question of curbing terrorism. Similarly, Narain Singh was made governor of Assam because even though Indira Gandhi’s Congress was in power in the State, the dialogue between the Assam movement leaders and Indira’s cabinet had remained ruptured. The case of PG Gavai was interesting as well. The former IAS officer had been a trustee of the AR Antulay’s Indira Gandhi Pratibha Pratishthan. The entire corpus of trust money had disappeared from its account in 1995 after dubious transactions were made between the trustees and a chartered accountant. The same year, Antulay also became a member of cabinet in Maharashtra.

The role of governor as a politically motivated leader — if not in the grip, then in broad alignment with the Centre — was what was imagined by the then prime minister.

In the case of Delhi, the powers of the state government don’t stretch over to the realm of law and order and nor is the government the major land-owning body.

Delhi got its first chief minister only in 1952, when Chaudhary Brahm Prakash of the Congress was appointed to the post. After his term ended, the office of Chief Minister of Delhi was abolished for 37 years until December 1993. In 1991, the Parliament passed a constitutional amendment act which mandated elections in the national capital and elections were held in 1993, after which Bharatiya Janata Party’s Madan Lal Khurana was sworn in as the chief minister.

The Sarkaria Commission and the Balakrishnan Committee recommended a Legislative Assembly but with limited powers to the local government. Interestingly, the Sarkaria Commission was set up to balance powers between the Central and state governments in 1983 and it recommended a status quo in Centre-state relations, especially in fields pertaining to legislative matters, stressing that a powerful Centre is synonymous with a powerful nation. The Commission was appointed by Indira Gandhi without any consultation with non-Congress Chief Ministers like NT Rama Rao or Ramakrishna Hegde.

In the case of present-day Delhi, which is a product of all this constitutional evolution, there are multiple road owning agencies and governance is greatly dependent on the approvals of several bodies that are under the control of the central government. This is the reason why collaboration is a pre-requisite.

Another pointer to the need for collaboration is water management. In Delhi, over the years, the increase in sewage treatment capacity has not not been in proportion to the increase in water production and supply. Unless there is cooperation between agencies, sewage treatment plants cannot fulfil their function in a place like Delhi. For instance, a piping connection and other infrastructure created by the Centre-controlled Delhi Development Authority (DDA) to reuse treated sewage from the Keshopur STP complex has been reportedly lying unutilized. The creation and the management of the STPs comes under the purview of the Delhi government-controlled Delhi Jal Board. In a city like Delhi, storm water drains are a little over 200 in number are spread across in a haphazard manner and combine into 22 outfalls to the river. The slightest of rains leads to urban flooding. Without support from the Centre, water governance is impossible.

Arvind Kejriwal’s party’s reaction needs to be assessed within the context of the bureaucratic bungles that plagued its first full term. The tussle between the LG and the AAP-led Delhi government has had an unpleasant history. In 2018, tensions had peaked. There came a time when Kejriwal, Deputy Chief Minister Manish Sisodia, Environment Minister Gopal Rai and Health Minister Satyender Jain had gone on an indefinite hunger strike at the office of the present LG Anil Baijal. The reason cited by Delhi’s ministers was the constant intervention in administrative work with bureaucrats going on strike.

According to a report card of delays by LG released by Sisodia, the highest delay for approval of the LG Anil Baijal was for ‘Higher Education Loan Guarantee Scheme for Students’ which is 402 days, while the lowest delay was for ‘Doorstep Delivery of Services’, which was 21 days. The implementation of the midday meal programme for children by the Akshaya Patra Foundation in 292 government schools in the Union Territory was also delayed. The state government allotted a piece of land to the foundation on a licence-to-use basis, where they set up a centralised kitchen. The AAP has repeatedly questioned why the exact same model wasn’t approved by the L-G. Based on data from the first 101 Mohalla clinics and 24 polyclinics, the Delhi government envisioned providing free testing services to Delhiites via outsourcing. This was delayed by the L-G, but passed after public pressure without a single edit.

Another example cited in a report on Firstpost is that of the fourth fare fixation committee report, which the L-G and Centre did not make public before increasing the tariffs in 2017. The Delhi Metro Railway (Operation and Maintenance) Act, 2002 under Section 33 and Section 34 paved the way for a Fare Fixation Committee to be constituted to recommend fares for the Delhi Metro. All the government received was a press release which eliminated any scope of debate even though the DMRC has equal equity participation from the Centre and the Government of NCT of Delhi. The report on Firstpost noted, ‘The recommendations of the fourth FFC were submitted in September 2016 and not placed before the DMRC Board till May 2017 and procedural violations and delays lead us to believe that there is something rotten in the state of the Delhi Metro. Third, the latest fare hike violates the precedent (from the third FFC) of not making any slab-hike greater than Rs eight, with many slabs even seeing a greater than 100 percent increase.’

The assumption that the new amendment will dilute powers of Delhi’s democratically elected leaders is rooted in the history of Centre-state relations in recent times. But the broader take away from the never-ending AAP versus Centre battle is that the governor’s post is one that demands serious reconsideration. In the Constituent Assembly debates in 1949, BR Ambedkar defined the duties of the governor in the Constituent Assembly debates thus: “One is, that he has to retain the Ministry in office. Because the Ministry is to hold office during his pleasure, he has to see whether and when he should exercise his pleasure against the Ministry. The second duty which the Governor has, and must have, is to advise the Ministry, to warn the Ministry, to suggest to the Ministry an alternative and to ask for a reconsideration.”