Governance of Capital City
By Dr. S.Saraswathi
(Former Director, ICSSR, New Delhi)
The recent judgment of the Supreme Court’s Constitution Bench clarifying the relative powers of the Lieutenant Governor and the Delhi Government is only part answer to the issues that have surfaced. Several questions are yet to be settled as politics divides governance of the country’s Capital city/territory making it more like a tug-of-war than a cordial cooperative responsibility.
Clearly, the “war” has not ended, but continues seeking answers to remaining questions. We have to make a thorough examination of the special requirements for Delhi’s governance as they are bound to be different from that of other cities and States. The real problem is to find clarity in the Capital city’s governance beyond a solution to the current power struggle. The former will provide answer to the latter.
The Supreme Court, in its unanimous judgment said that, “the Cabinet must convey all decisions to the LG, but his concurrence is not required in all matters”. It further clarified that “though Delhi is not a full-fledged State, the LG is bound by the advice of the Council of Ministers except for land, police and public order reserved for the Centre”. The proviso 239AA allows the LG to refer to the President any issue in which there was difference of opinion with the Council of Ministers. In such an issue, the LG is bound to follow the President’s decision. “The LG has not been entrusted with any independent decision-making power”, ruled the Supreme Court.
Thus, the Supreme Court has overturned the ruling of the Delhi High Court of August 2016 that since Delhi was a Union Territory, all powers lay with the Central Government and not the elected Delhi Government.
In lay man’s view, the kind of controversies that have arisen in the governance of the Capital territory is rooted in deficiencies in the Constitutional arrangements: While the country has politically matured enough to realize the importance of political power and is competent in playing power politics.
All federal States have a national Capital situated mostly in the midst of a constituent State. But, no serious conflict between authorities normally affects its governance. Federal capitals are governed mostly under special statutes. Compared to provinces/States in the federation, they are given lower degree of self-Government and often lesser share in the governance of the federation.
The three recognized “classical federations” – Australia, Canada, and the USA – are all big in size, and have a large proportion of immigrant population. They have small Capital cities which have to serve as the nation’s Capital and not function like a Province/State like others in the federations.
India also has a need for a Capital territory which will be different in its role and functions from other States and their capitals to suit the responsibilities of the Union Government. To equate governance of the Capital territory with that of any other State in the nation seems inappropriate – a point that needs more intensive consideration not just by Parties and leaders but by political scientists.
The term “collaborative federalism” to refer to the interdependence of LG and the Delhi Government was used by the Chief Justice to explain the special position of the Capital.
One of the judges in the present case, while concurring with the judement has given a separate opinion indicating that issues of finance and policy involving vital national interests can be referred to the President by the LG.
In the US, the Capital city, Washington DC enjoys the status of a federal district and has come to be known as “district model” Capital. It was placed under the exclusive jurisdiction of the Federal Government by an Act of the Congress in 1801. Statehood is deliberately denied to the Capital by Article 1 of the Constitution which provides that, “The Congress shall have power to…exercise exclusive legislation in all cases whatsoever over such district (not exceeding 10 sq.miles) as may, by cession of particular States and the acceptance of the Congress become the seat of the Government of the United States”.
American President Madison believed that such an arrangement was an “indispensable necessity”. He wanted to protect the federal Government against possible encroachment by the State in which the Capital is located. Neutrality of the place and national security were the prime considerations.
His arguments against statehood for the Capital city are well applicable to all big federal governments. Indian political conditions which presently allow continuous protests on various issues in different forms around Parliament and Secretariat disrupting the functioning of the Union Government point to the need to isolate the headquarters of the national Government from local politics. Several regional Parties have come up in India which lack national perspective necessary to govern the capital territory wherever it may be located in the country.
Washington DC has no voting representation in the Congress and the federal Government maintains jurisdiction over the city. The demand there is for representation for the district of Columbia (Washington DC) in the Congress like other States of the US by choosing Statehood. Delhi has no such problem having its own legislative body as well as its own representatives in Parliament.
Canada’s capital Ottawa is a single-tier municipality and has no county or regional municipality over it. It is governed by Ottawa City Council which is responsible for all municipal services and a directly elected Mayor. There are three levels of Government – municipality, provincial, and federal – which have direct and also some overlapping and conflicting control over and/or responsibility for Ottawa. The National Capital Region extends beyond Ottawa into two provinces and several municipalities.
In Australia, Canberra remains the National Capital Territory under the Australian Constitution since 1913. Australian Capital Territory is Australia’s Federal District under an Act which does not provide for full legislative independence as for other Australian States. The Act provides for a Legislative Assembly and its decisions could be overruled by the Governor-General, that is, by the national government. This veto power was annulled in 2011 and given to the majority of both houses of Federal Parliament , meaning affirmation of central democratic control in the governance of the capital city.
The Supreme Court judgment on the Delhi Government-LG case categorically states that, “Delhi as the national Capital belongs to the nation as a whole”. It concerns the governance of the Capital city and not just the powers of the LG and CM.
Attempts to draw lessons for other Union Territories like Pondicherry which face similar problems or for States like Tamil Nadu where some leaders fear encroachment by the Governor in State autonomy are improper.
The follow up controversy regarding control over “services”, that is postings and transfers of officials that is now raging, has narrowed down the primary issue before the nation to the level of a struggle for power.
The case of Delhi is unique. It relates to governance of the Capital city/region in a federal set up in world’s largest democracy – a question unrelated to Party politics, personality clashes, and power struggles. Can we ever rise above petty politics? —– INFA