Context

Supreme Court has referred the power tussle controversial law to a constitutional bench to get the constitutional interpretation and a five judge bench has given a verdict on the power tussle issue

Background

• Delhi is placed as a union Territory under Schedule 1 of the Constitution.
• 69^th Constitutional Amendment Act, 1991 has given the constitutional backing to the appointment of Lieutenant Governor and its functions.
• National Capital Territory of Delhi Amendment Act 2021 has been introduced by the Parliament which has created the window more power tussle.
• The wide ranging power tussle has been in the backdrop of failure and disruption in the constitutional ideals.
• Supreme Court has referred the National Capital Territory v/s Union of India case to the constitutional bench.

Analysis

What is the present governing structure of Delhi?

• 69^th Constitutional Amendment Act, 1991 has inserted Article 239AA, which declared territory of Delhi to be administered by the Lieutenant Governor (L-G) on the aid and advice of the elected legislative council.
  • L-G is to be appointed by the Union Government.
• Elected legislative council can give advice to the L-G on the matters reserved under state list and concurrent list except public order, police and land.
• The amendment has also entrusted that L-G should function on the aid and advice of the legislative council or on the orders of President of India.
• Article 239AA also empowers L-G to refer a bill to the President of India in any matters on difference of opinion.

What are the recent changes?

• National Capital Territory of Delhi (Amendment) Act, 2021 has been introduced by the Parliament of India to change the governance structure, which has opened the scope for more tussles between the union representative and elected government.
• The amendment act proposes to change the term ‘Government’ in any law means the L-G of Delhi not the elected legislative council.
• The act also barred the state assembly to create any committee for day to day administrations and dissolved the earlier committees created for the same purpose.
• Amendment has mandated the elected government to take opinion of the L-G before any executive actions.

What are the major concerns?

• Federal structure: Federalism is a part of Basic Structure Doctrine as mentioned by the Supreme Court of India in Keshavananda Bharti Case, overriding power of the L-G on elected government will destroy the idea the federalism.
• Hindrance in legislative and executive actions: Difference in opinion may impact the legislative and executive action and can reduce the efficiency of developmental process.
• Checks and balances: Overriding power of the Union representative with arbitrary mention of any powers reduced the scope for check and balances.
• Democratic values: Federalism, check and balances and elected government are the major pillars of Indian Democracy. Any disturbances in these ideals will reduce the democratic values that have been enshrined by the founding fathers.
• Fiscal devolution: the power tussle between L-G and elected representatives impact the fiscal federalism and fiscal devolution among state and the centre.

What are the Judicial Opinion?

• Delhi High Court has taken the stances in the favor of central government, not to provide statehood to National Capital Territory of Delhi.
• Supreme Court has referred the case named ‘National Capital Territory v/s Union Of India’ to the constitutional bench. The five judge bench noted that:
  • Purposive construction: the objective behind the 69^th Constitutional Amendment is to interpret the new added articles.
  • Principle of federalism and democracy should be there in the interpretation.
  • L-G is bounded by the aid and advice of the state council of ministers on the subjects under state jurisdiction except public order, police and land.
  • L-G should act as a facilitator in the legislative and executive process.
  • Any matter cannot be every matter, L-G should have the power to reserve any matter but cannot reserve every matter on the grounds of difference of opinion.

What could be possible development to resolve the power tussle?

• Constitutional ideals: Both the elected government and the L-G should perform the duties on the ideals laid down by the constitution.
• Ensuring Fiscal Federalism: The fiscal devolution and federalism should be incorporated to provide financial independence to the elected government to perform its actions.
• Welfare and developments: Power tussle between the two power centres should not impact the developmental process for the people. Government whether central or legislative assembly should ensure proper development.
• Judicial intervention: Judiciary should intervene neutrally and give its interpretation and save the ideals of democracy by maintaining a checks and balance between two power centres.

Conclusion

Indian democracy is based on the principles of federalism, elected representative and checks and balances. Union representatives always remains a grey area in the legislative and executive process, the state legislative elected by the people should act accordingly with the constitutional values and L-G should act on the aid and advise of the elected government. In order to protect the checks and balances the new amendment act should maintain a balance of power between two positions so to keep a check on arbitrary actions of both the power centres. Power tussle should be the reason of hindrance in the developmental process.

Practice Question Q1. What is the dual governance issue in Delhi? Do you think Supreme Court’s pronouncement has been successful in resolving this power conundrum? Q2. Indian federalism is undergoing structural as well as functional changes.  In the light of the statement, analyse the need for re-examining the federalism in India. Also suggest some measures for deepening federalism in India.