Union Territories

Chief Secretary and Current Issue with Extension of its Tenure in Delhi

Context: The Supreme Court of India, through an order, permitted the Union Government to unilaterally extend the tenure of the incumbent Chief Secretary despite the opposition from the Delhi government on allegations of conflict of interest.

Timeline of Current Issue with respect to Service of Chief Secretary in Delhi 

Government of NCT of Delhi vs Union of India Case, 2017 (Service Judgement):

  • In this case, the Supreme Court unequivocally held that references to "state government" in the relevant All India Rules (AIR) or Joint Cadre Rules (JCR) related to Delhi would mean the Government of Delhi.
  • Following this ruling, the Delhi government's recommendation became necessary for extending the Chief Secretary's tenure under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.

Government of National Capital Territory of Delhi (Amendment) Act, 2021:

  • This act amended Section 21 of the Government of National Capital Territory of Delhi Act, 1991, by inserting subsection (3), specifying that the expression "Government" referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.

Current Supreme Court Order:

  • The Supreme Court carved an exception for the Chief Secretary of Delhi, asserting that he is differently placed than other officers under the AIR or JCR and is not bound by the Services judgement.
  • Despite the earlier ruling emphasizing the Delhi government's role in extending the Chief Secretary's tenure, the Supreme Court's current order permits the Union Government to unilaterally extend the incumbent Delhi Chief Secretary's tenure. 
  • This decision comes despite the opposition of the Delhi Government, citing serious allegations of conflict of interest against the Chief Secretary, which are currently under investigation.

Chief Secretary of a State 

While the Constitution of India does not have an explicit provision related to the chief secretary of states under Article 166, it provides for the conduct of the business of the state government. Their appointment is an executive action done by the chief minister in the name of governor.

  • Depending on the state, the powers and functions of chief secretaries are defined in the rules of business. 
  • The Chief Secretary is at the apex of the administrative hierarchy of a state. 
  • Many of their functions have evolved through parliamentary custom and convention, and the rules are amended from time to time to accommodate new evolving roles.

Role of Chief Secretary 

The Chief Secretary of a state acts as the ex-officio Secretary to the Council of Ministers and, in that capacity, he is known as the Secretary to the Cabinet and plays an important role in policy formulation.

  1. Head of the Cabinet Secretariat Department: The Chief Secretary oversees the Cabinet Secretariat Department, functioning under the Chief Minister's political leadership.
  2. Work Pertaining to Cabinet Meetings:
    • The Chief Secretary is responsible for preparing agenda papers for cabinet meetings.
    • As the ex-officio Secretary to the Council, they attend cabinet meetings and sub-committee meetings.
    • The Chief Secretary records decisions made in cabinet meetings and forwards copies to the Governor, Chief Minister, and council of ministers.
  3. Participation in the Policy Formulation Process:
    • The Chief Secretary serves as the primary source of information and advice to the Chief Minister and other ministers.
    • Their presence in cabinet meetings is crucial to counterbalance ministers who may be influenced by public opinion or constituency pressure, ensuring decisions are made with long-term considerations.
  4. Role in the Follow-up of Cabinet Decisions:
    • After cabinet decisions, the Chief Secretary oversees the implementation by the secretary of the concerned department.
    • The Chief Secretary has the authority to request documents related to any department's case.
  5. Representation at the National Level Consultations:
    • The Chief Secretary represents the state in national-level consultations, contributing to discussions and decisions on broader issues.

Function and Responsibilities of Chief Secretary 

1.     He chairs an expert body, which decides matters of awarding honours and distinctions.

2.     He deals with matters relating to inter-state disputes.

3.     The Chief Secretary can initiate changes in Rules of Business but the final decision in this respect rests with the cabinet.

4.     All matters of housing accommodation and government buildings and circuit houses fall under his jurisdiction.

The functioning and responsibilities of the Chief Secretary affect all the departments and, therefore, the role of the Chief Secretary as the head of the General Administration Department remains of substantial significance.

Delhi vs Centre: the question is who has control over the bureaucrats

Context: Five years ago, a Constitution Bench of the Supreme Court advised the Centre, acting through the Lieutenant Governor, and the Delhi government led by Chief Minister Arvind Kejriwal to follow the path of “collaborative federalism”. The term, coined by the court in its July 2018 judgment, merely meant that the Centre and the Delhi government should lay aside their differences, show mature statesmanship in their relationship. The five judge Bench had held that the two powers —Centre and Delhi government — were “inter­dependent”.

ADMINISTRATION OF DELHI

• Delhi State Legislative Assembly having a Chief Minister came into being in 1952 under Government of Part-C States Act, 1951. (Chief Commissioners Province)

• The States Reorganisation Act, 1957, conferred UT status on Delhi, to be administered by  an Administrator appointed by President.

• Limited representative government was provided by the Delhi Administration Act, 1966.

• Constitution 69thAmendment added Article 239AA & Article 239AB which was gave constitutional status and the National Capital Territory of Delhi (GNCT) Act, 1991 was enacted based on recommendations of Balakrishnan Committee Report.

• Election Commission under Article 324 conducts elections to Legislative Assembly of Delhi.

ARTICLE 239AA - SPECIAL PROVISIONS WITH RESPECT TO DELHI

Provides that Legislative Assembly of Delhi can legislate on matters in State & Concurrent List except – State List: Entry 1–Public Order; Entry 2 – Police; Entry 18 – Land.

DELHI HIGH COURT JUDGMENT – 2016

It declared Delhi as a UT, with LG as administrative head having discretionary powers.

SC JUDGMENT – 2018

• Reversed Delhi HC Order - stated that Article 239AA provides for representative government with Council of Ministers to aid and advice the LG except on matters he refers to the president.

• Court Focussed on Collaborative Federalism – “The Union government and the State governments should endeavour to address the common problems with the intention of arriving at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State governments should express their readiness to achieve the common objective and work together for it.”

• If difference arises on any matter, LG has to send it to the President.

• However, LG cannot refer every matter to the President as Article 239AA (4) mentions about “any matter”.

SALIENT FEATURES OF GOVT. OF NCT DELHI ACT, 1991

• Special address by Lieutenant Governor: At the first session after election of Legislative assembly and at the first session of each year.

• Matters in which Lieutenant Governor to act in his discretion, which falls outside purview of powers of Legislative Assembly; matters in which powers or functions are entrusted or delegated to LG by the President; where LG under any law is required to act in his discretion, where LG is  to exercise any judicial or quasi-judicial functions.

• President shall make rules for procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.

• All executive action of the Lieutenant Governor shall be expressed to be taken in the name of the Lieutenant Governor.

• Duties of Chief Minister: To communicate to LG all decisions of Council of Ministers relating to administration of the Capital and proposals for legislation, to furnish such information relating to the administration of the Capital and proposals for legislation as LG may call for & if the Lieutenant Governor so requires, to submit for the consideration of Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

PROVISION IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY IN NCT OF DELHI (ARTICLE 239AB)

• President after receiving report of LG may suspend the operation of Article 239AA or any law made under Article 239AA for one year.

• President’s order under Article 239AB shall expire at  the end of one year from  the date of issue of the order and the provisions of clauses (2) and (3) of Article 356 shall apply to such order as they apply to a Proclamation issued under clause (1) of Article 356.

GOVERNMENT OF NCT DELHI AMENDMENT (2021)

• The term “government” referred in any law made by Legislative Assembly will imply LG of Delhi.

• Rules regulating procedure and conduct of business in Delhi Assembly to be consistent with Rules of Procedure and Conduct of Business in Lok Sabha.

• Prohibits Delhi Assembly from making any rule to enable itself or its committees to: (i) consider matters of day-to-day administration of NCT of Delhi (ii) conduct any inquiry in relation to administrative decisions.

• The Amendment adds that on certain matters, as specified by the LG, his opinion must be obtained before taking any executive action on the decisions of the Minister/ Council of Ministers.

Lt. Governor and Delhi

Context: The Supreme Court on April 10 orally observed how can the Lieutenant Governor (L-G) act “without aid and advice” of the Council of Ministers in nominating 10 members to the Municipal Corporation of Delhi. This article discusses the need for full statehood for Delhi, the capital city of India. Delhi's government has limited powers despite being one of the most populous cities in India. There is a need to view Delhi from the prism of the interests of the entire country, given that it is the national capital.

So we will cover the following aspects in this article: 

  • Some Historical perspective on administration of Delhi
  • Why Delhi should be provided with statehood 
  • Reasons against granting statehood to Delhi
  • Way forward
    • Supreme Court Verdict on Delhi-Centre Power Tussle

General Studies- II: Governance, Constitution, Polity, Social Justice and International relations

  • Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

Some Historical perspective on administration of Delhi

  • Till 1992, except for a brief interlude, Delhi was a union territory under the complete control of the Government of India. 
  • Delhi was allowed its ‘statehood’ early in the 1990s, with a Chief Minister and a popularly elected unicameral legislature though the ‘State’ remained truncated in its powers.
  • But It remained in substance a union territory and in form a State, with the Lt. Governor retained as its chief executive. 
  • The Chief Minister and his Cabinet made a late entry into space where Lt Governor and several municipal corporations already existed which created friction. 
  • Many departments of the Centre, State, scores of parastatals and five ULBs (urban local bodies) providing bits of governance in the city. 
  • It could safely be asserted that Delhi has more government and less governance than any other city or state in the country

Why Delhi should be provided with statehood: 

  • Massive increment in population of Delhi 
    • In 1991, the 69th Amendment to the Constitution created the Legislative Assembly of Delhi, at a time when the city's population was much smaller. However, as of today, the city has nearly two crore people, making it one of the most populous cities in India. This growth in population has led to a demand for more representation and self-governance.
  • Limited powers of the Delhi Government: 
    • Nowhere in any democracy are two crore people represented by a government with restricted powers. Despite being one of the most populous cities in India, Delhi's government has limited powers because it is not a full state.
    • The Delhi government struggled to fight the COVID-19 pandemic because it did not have complete control over its healthcare system. The Central government controls some aspects of Delhi's healthcare, making it difficult for the state government to take timely and effective measures to control the spread of the virus.
  • The original idea behind Union Territories was just transitional: 
    • When the Union Territories were first created, the idea was to provide a flexible yet transitional status to several territories that joined India. The territories were given a certain degree of autonomy, but they were also expected to eventually transition to statehood.
    • Goa, Manipur, Himachal Pradesh, and Tripura were initially Union Territories but were granted statehood as they developed economically and politically. This shows that the Union Territory status was meant to be temporary, and statehood was the ultimate goal.
  • Equal rights for representation and self-governance
    • Providing equal rights for representation and self-governance was one of the primary reasons for the creation of the Legislative Assembly of Delhi. As the city's population grows, the demand for more representation and self-governance becomes even more critical.
    • The Delhi government has been advocating for full statehood for years, arguing that it would give the city's residents more say in matters of governance. The lack of full statehood has led to several conflicts between the Delhi government and the Central government over issues like land, law and order, and the police.
  • The need for full statehood
    • The time has come to enter the second and final stage to create the full state of Delhi. This would give the city an elected government with greater powers and more say in matters of governance, such as law and order and land management.
    • If Delhi becomes a full state, it would have complete control over its police force, which is currently under the Central government's control. This would allow the city's elected government to take timely and effective measures to maintain law and order and ensure the safety of its citizens.
  • UN report on Delhi's population
    • According to a United Nations report, Delhi's urban agglomeration will make it the most populous city in the world by 2028. This highlights the urgency of granting full statehood to Delhi, as the city's population continues to grow.
    • With a population of nearly two crore people, Delhi is already struggling with issues like traffic congestion, pollution, and water scarcity. As its population grows, the city's infrastructure and governance will come under even more strain, making the need for full statehood even more urgent.

Reasons against granting statehood to Delhi:

  • Local political ambition:
    • The demand for statehood has primarily been driven by the political ambitions of the local government, rather than a national compulsion. The Aam Aadmi Party (AAP) has been advocating for full statehood for Delhi since it came to power in 2015.
  • National capital interests:
    • Delhi, being the national capital, must be viewed from the prism of the interests of the entire country, and not just those of the city.
    • The central government has the responsibility to ensure that the security of vital institutions such as the President's estate, Parliament, and foreign embassies is maintained.
  • Special security cover:
    • These institutions require special security cover and close coordination with centrally administered agencies such as RAW and IB, which cannot be provided by a state government.
    • In 2020, there were protests in front of the Chinese embassy in Delhi, and the Delhi Police had to coordinate with the central government to ensure the safety of the embassy and its staff.
  • Central government responsibility:
    • The institutions in Delhi are the sole responsibility of the Union government, and not of any particular state legislative assembly.
    • The Delhi Police, which is responsible for maintaining law and order in the city, comes under the Ministry of Home Affairs, which is a part of the Union government.
  • Control over territory:
    • The Indian government must have some territory under its control and cannot be an occupant or a tenant of a state government.
    • The central government owns the land on which the President's estate and Parliament are located.
  • Reservation from regional parties:
    • Many regional parties have expressed their strong reservation towards granting full statehood to Delhi, as they believe that the national capital belongs to every citizen of the country and not just those who reside in the city.
    • The Shiromani Akali Dal, a regional party in Punjab, has opposed the demand for full statehood for Delhi.
  • Loss of advantages:
    • Statehood would deprive Delhi of the many advantages it gets as the national capital, such as the entire burden of policing being borne by the federal government.
    • The Delhi Police force has a strength of around 80,000 personnel and is responsible for maintaining law and order in the city, along with providing security to the vital institutions.

Way forward

Supreme Court Verdict on Delhi-Centre Power Tussle

  • The Supreme Court judgement in the Government of NCT Delhi vs Union of India case, overturned the August 2016 judgment of the Delhi high court, which had ruled that since Delhi was a Union territory all powers lay with the central government, not the elected Delhi government. 
  • Resolving the dispute over the demarcation of powers between the Union Government and the Government of Delhi, the Supreme Court laid down a few key principles:
    • Delhi government has power in all areas except land, police and public order and the LG is bound by the aid and advice of the government in areas other than those exempted 
    • The only exception to this rule, it said, was a proviso to Article 239-AA, which allowed the LG to refer to the President any issue on which there was a difference of opinion with the council of ministers. In such a case, the LG would be bound by the President’s decision. 
    • Delhi Lieutenant Governor cannot act independently and must take the aid and advice of the Council of Ministers because national capital enjoys special status and is not a full state. Hence, the role of the L-G is different than that of a Governor. 
  • It observed that neither the state nor the L-G should feel lionized, but realize that they are serving Constitutional obligations and there is no space for absolutism or anarchy in our Constitution.