Delhi statehood demand: UT's hybrid model is constitutional, special administrative treatment also found in other jurisdictions

Delhi was a Union Territory till 1991 and then made into a hybrid after that, considering the special nature of it being the seat of the Union government. The special administrative treatment of the seat of the Union or the federal government is not something new and is also found in other jurisdictions.

Raghav Pandey April 02, 2019 22:21:46 IST
Delhi statehood demand: UT's hybrid model is constitutional, special administrative treatment also found in other jurisdictions
  • The political discourse between Manoj Tiwari and Gopal Rai about the issue of the statehood goes to show the lamentable condition of politics in the country

  • What lies at the heart of the matter is the judicial determination of the fact whether Delhi can be granted statehood or not

  • The special administrative treatment of the seat of the Union or the federal government is not something new and is also found in other jurisdictions

The recent spat between two eminent leaders from the Aam Aadmi Party (AAP) and Delhi BJP about the issue of the statehood goes to show the lamentable condition of politics in the country. It all started when BJP's Delhi unit president Manoj Tiwari stated last week that the Supreme Court made it clear that Delhi cannot be granted full statehood. AAP Delhi convener Gopal Rai retorted by saying that Tiwari was spreading “falsehoods” about the matter.

Keeping the politics aside, what lies at the heart of the matter is the judicial determination of the fact whether Delhi can be granted statehood or not.

The first conventional debate on this issue is whether Delhi should be a state or a Union Territory. It was a Union Territory till 1991 and then made into a hybrid after that, considering the special nature of it being the seat of the Union government. The special administrative treatment of the seat of the Union or the federal government is not something new and is also found in other jurisdictions.

Delhi statehood demand UTs hybrid model is constitutional special administrative treatment also found in other jurisdictions

Delhi chief minister and AAP supreme Arvind Kejriwal. Twitter/@AamAadmiParty

In the US, the District of Columbia government which has control over Washington, for instance, is also a branch of the federal government. This is when the US Constitution is much more federal than the Indian Constitution and accords a lot more powers to the states vis-à-vis the federal government. This translates into Washington DC being the sole Union Territory (in the language of Indian Constitution) on mainland USA. Therefore, Delhi not being a Union Territory in its entirety is a fairly-obvious administrative measure which was done away in 1991.

It is worth noting that the Supreme Court has already dismissed a plea seeking full statehood for Delhi. The legal question revolves around Article 239AA of the Constitution — enacted as per 69th Amendment Act of 1991 — which empowers the Delhi Legislative Assembly to legislate on all subjects in the 'State List' of Schedule VII. The only exceptions to those are public order, police and land. It is this exception that is the source of tension between the Centre and Delhi as the politics around controlling public order and the police forms a significant part of the politics in the country.

Further, Article 239AA (3) states that despite the apparent powers granted to the Legislative Assembly, the Parliament still reserves the power to make laws on any matter and in case of a conflict, the law made by the Parliament will prevail. This directly grants supremacy to the Centre, and the state is rendered powerless. Moreover, Article 239AA (4) thereafter makes the state subservient to the Centre. This clause provides that in case of a tussle between the lieutenant-governor and the chief minister, the former shall refer the matter to the president and the word of the president on the particular matter will be final. As the president acts according to the aid and advise of the Union Cabinet, it is the indirectly the word of the Centre which will be followed. What is even more problematic is that during the pendency of the decision from the president, it shall be competent for the lieutenant-governor, in any case where the matter in his opinion is so urgent that it is necessary for him to take immediate action, to take such action.

However, the Supreme Court has also made it clear that despite the provision, the lieutenant-governor is an administrative head in the limited sense, and is not a governor. He is bound by the aid and advise of National Capital Territory (NCT) government in areas other than those exempted. Thus, the court interpreted the words ‘aid and advise’ as provided in Article 239 AA (4) to mean that the lieutenant-governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers (only for matters enumerated) and this position holds true so long as the lieutenant-governor does not exercise his power under the proviso to Clause (4) of Article 239AA.

Moreover, the power-sharing between the Central and state governments needs to be read as per the spirit of the Constitution. The Indian Constitution has very deep centralising tendencies, much more than most federal constitutions and substantially more than the US. A relevant provision on this position is Article 3, which gives unbridled power to the Union government to make a new state or do away with an existing state. The Union government also has the power to turn an existing state into a Union Territory and vice-versa. Similarly, creating a hybrid model, like that of Delhi, is entirely permissible within the scheme of the Constitution, if the Union government so wishes to.

Delhi chief minister Arvind Kejriwal has argued that this is undemocratic and unconstitutional. He is wrong on both the counts. The model is constitutional for the above-mentioned reasons and also democratic, simply because the Union government is also a democratically-elected government. As per his logic, all Union Territories are administered by non-democratic authorities.

However, this debate provides a ground for expanding the discourse to question the statehood of Delhi. A simple argument against the statehood of Delhi is, if Delhi should be a state, then why not Mumbai or Bangalore or Chennai, etc?

As is seen in India and elsewhere, it is only a medium of unnecessary politics right under the nose of the Union government and Delhi is much better off as a Union Territory in totality.

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