The Delhi Government Has Obligations and Duties, But No Powers

Even as the Supreme Court has determined the Constitutional position regarding the relationship between the Lieutenant Governor (LG) and the Government of the National Capital Territory of Delhi (GNCTD), the other matters have been referred to “the appropriate regular bench”. The matters in this case refer to the issue of the services department and the authority over the department. A Ministry of Home Affairs Notification on May 21, 2015 placed the LG in charge of transfers and postings. This Notification has been a bone of contention between the GNCTD and the LG. The LG and the Union Government have been speaking in one voice on this issue, stating that since the matter is still sub judice, there is no question of any notifications being rescinded.

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The main Judgment in the Supreme Court's decision on July 4, 2018 was a reiteration of a plain reading of the Constitution. The decision stated that the GNCTD was an elected body and hence represented the will of the people. The LG, being an appointed office, was answerable to the appointing authority. Since the Constitution envisages that the GNCTD will have power to legislate over all matters enumerated in the State List and the Concurrent List of Schedule VII of the Constitution, except for police, and land and the maintenance of law and order. Only these matters would be under the control of the LG. The Court had also recognised that the Delhi was not a state, and therefore it would be wrong to conceive of it as one. However, the Court mentioned that it would not be right to consider Delhi purely as a Union Territory. The Court thus stated that the LG is bound by the aid and advice of the GNCTD. The GNCTD must appraise the LG of all policy decisions taken so as to ensure that governance functions smoothly.

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In the days following the decision of the Supreme Court, there have been two notably opposing views on it, one by Finance Minister Arun Jaitley, and the other by Senior Congress leader and former FM P Chidambaram. The day after the Supreme Court's decision, Jaitley stated on his personal website that the decision “emphasises at the importance of elected State Government, but Delhi being a Union Territory makes its powers subservient to the Central Government.” However, this conclusion that Jaitley arrived at can only be reached by reading the letter of the Judgement rather than the spirit. This is because the Supreme Court throughout its Judgement advocated caution and prudence on the part of all three parties. In fact, the 'subservience' that Jaitley is referring to pertains merely towards the power of Parliament to pass law on matters in the State List in relation to Delhi.

In the concluding paragraph of his post, Jaitley says:

“There are several issues which had directly not been commented upon but by implication there is some indication of those issues. However, unless issues of importance are flagged, discussed and a specific opinion is rendered, none can assume that silence implies an opinion in favour of one or the other. There are two obvious indications. Firstly, if Delhi has no police powers, it cannot set up investigative agency to investigate crimes as had been done in the past. Secondly, the Supreme Court has held categorically that Delhi cannot compare itself at par with other States and, therefore, any presumption that the administration of the UT cadre of services has been decided in favour of the Delhi Government would be wholly erroneous.”

This would mean that the position he has adopted is that the GNCTD has the duty to administer Delhi, however, it has no power to appoint people to carry out administrative duties.

Chidambaram, on the other hand, in an article in The Indian Express, highlighted that several arguments raised by the Union Government in favour of the LG were outright rejected by the Supreme Court. He stated that “the Supreme Court held that the Delhi government had legislative and executive power on all subjects except three — land, police and public order.” This is of course a very different reading from what Jaitley had presented. Chidambaram went further to say that “[h]aving lost in the swings, the ill-advised Central government is trying to win in the roundabouts. It says that Services (meaning appointments, transfers and postings of civil servants in the Delhi government) will continue to be under the control of the Lieutenant Governor.” This he illustrated by mentioning the immediate transfers initiated by the LG after the Judgement was pronounced.

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The control over the services is something that is in fact absolutely necessary for the GNCTD to effectively discharge its duties. For example, the issue of solid waste disposal is another sore point. This is a matter that has to be handled by the Municipal Councils. However, in Delhi, the Municipal Councils answer to the LG. Due to the mountains of garbage at the three landfills in Delhi, the LG has been at the receiving end of the Supreme Court's rebukes. On July 10, the Supreme Court stated in its Order that “There is a mountain loads of garbage in Delhi, particularly in Bhalswa, Okhla and Ghazipur. We would like to know who is responsible for clearing the garbage – those answerable to the Lt. Governor or those answerable to the Chief Minister.”

After the affidavits were filed, the Supreme Court in a subsequent Order on July 12 stated: “[I]t is clear that both the office of the Lt. Governor as well as the Government of NCT of Delhi are in agreement that the question of solid waste management in Delhi is the responsibility of the Municipal Corporations and that the Lt. Governor has the responsibility under the Act to issue directions in this regard in appropriate cases”. Continuing in this vein, the Court then said, “We have not been told of any such directions issued by the Lt. Governor in spite of the grave situation of mountains of garbage in Bhalswa, Okhla and Ghazipur. There is obviously dereliction of duty by the Municipal Corporations and the Lt. Governor.”

The garbage disposal issue is but one among many other points of friction between the LG and the GNCTD. Other notable mentions where the LG blocked the GNCTD are:

• The appointment of an enquiry commission into the alleged CNG Fitness Certificate Scam.
• The inquiry into corruption allegations in the Delhi and District Cricket Association.
• Appointing nominee directors to the Delhi Power Company Ltd. and other state owned power generation and distribution companies.
• Compensation to consumers for power supply disruption.
• Revision of stamp duty to be paid for sale of agricultural land.
• The appointment of Special Public Prosecutors.

It is clear that the LG has been obstructing the GNCTD in discharging its duties. What has enabled this unbridled obstruction is none other than the presumption that the LG holds absolute power over governance in Delhi. Thus, to reiterate, under the current circumstances, the GNCTD has a list of duties and obligations, but lacks the power to discharge them. This becomes more apparent when the services are kept out of their hands.