The Valmiki Ramayana tells the tale of Trishanku, a king who wished to ascend heaven in his mortal form, but finds himself thwarted at every turn. Eventually, he approaches the rishi Viswamitra who, having a grudge of his own with the gods, accedes to his request and, using the power of his penance alone, begins to raise Trishanku to the heavens. Alarmed by this, Indra uses his powers to stall Trishanku’s ascent, getting into a cosmic tug of war with Viswamitra. In some versions of the tale, the tug of war results in a stalemate with the hapless Trishanku suspended upside down between heaven and earth, begging everyone concerned to end his misery.
The story of Trishanku almost perfectly describes the state of affairs in Delhi’s governance. Delhi is not a state in the constitutional sense, nor is it purely a union territory. It has an elected legislature, a chief minister, and a council of ministers, but is also governed by the Union Parliament and executive, which enjoy concurrent powers over all matters in the state and concurrent lists as far as Delhi is concerned. The lieutenant governor, consequently, is much more powerful than the governor of any other state under the Constitution, but cannot also function purely like the administrator of a union territory.
This is just the constitutional arrangement under Article 239-AA as introduced by the 69th amendment to the Constitution. The above description does not even take into account the political conflict between the Aam Aadmi Party (AAP)–led Delhi government and the National Democratic Alliance (NDA) at the union level. The conflict has taken the dysfunction to new levels, prompting the litigation that has eventually led to the constitution bench judgment in Government of NCT of Delhi v Union of India (2018). Resting the interpretation of Article 239-AA on the basic features of parliamentary democracy and federalism, the Supreme Court’s judgment tries to put an end to some of the needless conflict between the government of the National Capital Territory of Delhi and the lieutenant governor. However, I argue that all it does is restore an unhappy status quo. This is not to say that the Supreme Court was wrong in having done so; far from it. I argue only that the Court’s judgment has laid bare the unworkability of Article 239-AA as it stands and the need to grant full statehood to Delhi.
Constitution Bench
The seeds of the present dysfunction in Delhi’s governance were probably laid when AAP won an unprecedented 67 out of the 70 seats in the Delhi Assembly in 2015. This was preceded by the first single-party majority government at the union level in 30 years, led by the Bharatiya Janata Party (BJP), which,incidentally, won all the seven Lok Sabha seats on offer from Delhi. Though both wins could, in some ways, be traced to the public disaffection over the United Progressive Alliance’s track record on corruption and misgovernance, the political platforms of AAP and the BJP were quite different. For the purposes of this article, it is, perhaps, sufficient to say that, as far as the BJP was concerned, AAP presented a direct challenge to its claimed monopoly on the “clean governance” platform and, to AAP, the BJP was essentially indistinguishable from the Congress insofar as its being beholden to corporate interests was concerned.
Having taken such extreme positions against each other, and having benefited from crushing mandates, perhaps, both parties felt that compromise with each other would only harm their respective political futures. The Delhi government accused the Union Government, acting through the lieutenant governor, of obstruction, and the latter accused the former of “anarchy.” A whole range of issues, from service matters to questions of investigation of corruption cases, came before a division bench of the Delhi High Court, raising common questions as to the powers of the lieutenant governor and the Delhi government under Article 239-AA.
The judgment of the division bench of the Delhi High Court possibly made matters worse (Government of NCT of Delhi v Union of India 2016). In interpretingArticle 239-AA as it did, giving the lieutenant governor the power to interfere in every decision of the Delhi government, the Delhi High Court effectively declared the lieutenant governor the monarch of Delhi, giving the office the kind of powers last enjoyed by the rulers of princely states during colonial rule (Kumar 2016). The chief minister and the council of ministers were thus reduced to being advisers and not an elected executive that is accountable to the legislative assembly. The lieutenant governor could disregard the “aid and advice” of the council of ministers and effectively act on their own, as the Delhi High Court interpreted the term “on any matter” in clause (4) of Article 239-AA to mean “on every matter.”
When the case was taken up in appeal, a two-judge bench of the Supreme Court referred it to a constitution bench to address the constitutional issues.
What the Supreme Court Has Said
While the three concurring opinions do not say so explicitly, they all reject the Delhi High Court’s interpretation of Article 239-AA, and rightly so. Merely because the interpretation afforded by the Delhi High Court is a plausible one (“on any matter” can mean “on every matter”), the Supreme Court does not find it necessarily tenable in the context ofArticle 239-AA. It rejects this interpretation of the lieutenant governor’s power, on the grounds that it would go against the basic structure of the Constitution; specifically the basic features of representative democracy and federalism. In so doing, the Supreme Court has grounded its interpretation of Article 239-AA on fairly unimpeachable foundations.
The Supreme Court notes that Delhi’s legislative assembly was not some illusory effort to give Delhi’s residents an illusion of representative government. Rather, reaching back into the history of Article 239-AA, they find that the idea was always to give the residents of Delhi a meaningful form of representative government. A lot of reliance is placed on the Balakrishnan Committee’s report which led to the introduction of Article 239-AA, to note specifically, the nature of the relationship between the lieutenant governor and the government of Delhi. Emphasis is placed on the meaning of “aid and advice” in the constitutional sense (as opposed to the purely grammatical meaning of the term) and import of the use of this phrase in Article 239-AA.
The second footing on which this interpretation proceeds is the federal character of the Constitution. While accepting that Delhi is not a state for the purposes of the Constitution, the Supreme Court notes that the powers of the legislative assembly are not delegated by Parliament, but are, in fact, plenary in nature, just like any other state legislative assembly. Even though the Delhi legislative assembly has no exclusive field of legislative power like other states, the fact that the source of such legislative power is the Constitution itself, and therefore on par with Parliament, has been noted by the Court.
Consequently, the Court has read the lieutenant governor’s power to differ with the Delhi government “on any matter” to mean a matter of exception and not a matter of course. The lieutenant governor cannot simply differ with the elected government and seek to have their way on areas of the Delhi government’s competence. Rather, in exceptional circumstances, the lieutenant governor, after consultation with the council of ministers to resolve any differences, can refer such a matter to the President in accordance with the proviso to clause (4) of Article 239-AA.
But, what are the exceptional circumstances that might warrant such reference? Here, there is a difference in the phraseology used by the judges. Chief Justice of India Dipak Misra uses the terms “the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and thenurtured and cultivated idea of respect for a representative government;” Justice D Y Chandrachud uses the more prosaic “substantial issues of finance and policy which impact upon the status of the national capital or implicate vitalinterests of the Union;” and Justice Bhushan uses the even more terse phrasing of “when it becomes necessary to safeguard the interest of the Union Territory.”1 The terminology used, except in the case
of Justice D Y Chandrachud, does not provide much guidance to us, but will have to be explained by the subsequent benches that decide the specific petitions in this case.
Unsatisfactory Status Quo
As unexceptionable as the Supreme Court’s reasoning is in this matter, all it does is to revert the situation to an unhappy status quo. The fact that the Supreme Court has not been able to
articulate a clearly set out standard for review of the lieutenant governor’s actions in differing with the elected government is not the fault of the Court; the fault lies in Article 239-AA.
Delhi’s sui generis status in the Constitution leaves it also in a curiously Trishanku-like state. In the 30 years since the Balakrishnan Committee report, Delhi’s population has nearly tripled. It is home to nearly two crore residents and has one of the highest per capita incomes in the country. It suffers from intractable problems relating to pollution, land use, and all the other issues that modern megacities face. Yet, the Delhi government does not control its own police and cannot regulate land use.
Addressing Delhi’s issues involves a complicated dance between the union, state, and municipal governments, where no one is sure who is leading and not everyone is reading from the same sheet. Whereas, in the context of other states, the hierarchy between these authorities is much more clearly laid out and responsibilities divided neatly, in Delhi it is a mess of concurrent jurisdiction and arbitrary exclusions that make coordination virtually impossible and conflict the norm.
In this context, the demand for full statehood for Delhi is a legitimate one. With the constraint that the state government cannot be allowed to interfere in the functioning of the union government for partisan purposes, there is no reason why the Delhi government should not be allowed to control its own police force and make regulations for land use. With the geographic exclusion of the areas currently under the jurisdiction of the New Delhi Municipal Council and the Delhi Cantonment Board (which can continue to be directly under the union government) from the future state government, even the concerns expressed in the Balakrishnan Committeereport can be addressed.
Trishanku’s tale, though, does not have an entirely unhappy ending. To avoid further conflict with Viswamitra and as a compromise, Indra agreed to the creation of a separate heaven where Trishanku would live as a ruler and enjoy as a god for all time to come, but without questioning Indra’s rule over heaven. Perhaps there is a Trishanku heaven for the residents of Delhi that will give them full statehood in all but name.
