The AAP effect: What the SC judgment means for other Union Territories

The National Capital Territory of Delhi has always been an anomaly. The Union Territory (UT) of Delhi was created in 1956 and subsequently declared the National Capital Territory of Delhi in 1991. A UT, it was argued, was not nearly as powerful as a state. But under Article 239AA and associated Articles, Delhi is more than a usual UT. 

Now, the July 4 Supreme Court ruling on the AAP versus Delhi L-G tussle — as some of us had stated — will have implications for other UTs too.

The CM of Puducherry, V Narayanasamy, who has also been having problems with the Centre-appointed Lieutenant-Governor (L-G) Kiran Bedi, has already hailed the Supreme Court judgement and warned Bedi.

“Whoever violates the SC order, I will file a contempt of court petition against them. LG Kiran Bedi must stop her activities and must respect the court’s order. I have been writing to her requesting her to refrain from interfering with the administration of the elected government, but she did not respond. Now, the SC has passed a judgement echoing our views and sentiments. The order is applicable to Puducherry also,” Narayanasamy said.

Implications for other UTs

It is difficult to believe that it was a coincidence that a BJP leader, Bedi, was appointed the Puducherry L-G, and an alumnus of the Right-leaning Vivekananda International Foundation, Anil Baijal, was given the post in Delhi.

The SC ruling has stated unequivocally that, “The L-G must work harmoniously with his ministers...and must not seek to resist them every step of the way...Decisions of the council of ministers must be communicated to the L-G, but this does not mean that the concurrence of the L-G is required.”

This path-breaking judgement will have major implications for the government-L-G ties in all Union Territories.

Some credit for this must go to the AAP, which, by taking its battle with the L-G to court, made sure the question was settled once and for all. But ironically, while a Congress CM like Narayanasamy has hailed the verdict, party leaders in Delhi, like Ajay Maken and Sheila Dixit, are downplaying the AAP victory.

Even before this, when 21 AAP MLAs were disqualified by a Chief Election Commissioner who did not even hear out the accused legislators, Maken had welcomed the action. The disqualification was overturned by Delhi High Court later.

After the recent SC verdict, former Delhi CM Sheila Dixit said that (unlike the AAP) the Congress had governed Delhi without any difficulty for 15 years. But she did not mention that in these 15 years, the L-Gs were very supportive of the Congress UT government, because the Congress and its allies were the ruling party/coalition at the Centre too. 

India quasi-federal?

Our Constitution, influenced by the British Government of India Act, 1935, is strongly weighted towards the Centre. The division of powers in the Constitution glaringly exposes the predominant powers of the Union (Centre).

The Union has control over 97 subjects. The Concurrent List, in the items on which both the state and the Centre have a say, has 47 subjects. However, in case of a difference of opinion between the Union and the states, the Union’s stance will prevail. So, in effect, the Union/Centre’s powers equal 97+47=144 powers/subjects.

The subjects allotted to the State are only 66. All residuary powers go to the Union, contrary to federal Constitutions.

The famous federalist Prof. KC Wheare openly criticised India as quasi-federal.

The GoI Act, 1935 was not promulgated by the Constituent Assembly. The Constitution, influenced by it, is more unitary than federal, and federalising it will require a massive popular struggle.

As a first step, there should be a conclave like one held decades ago to relook at Indian federalism. Even the use of the term “Centre”, somewhat illiberal in itself, points to the fact that India’s federalism is not as full-fledged as of the US or Canada.

“Union” is a Constitutional term, unlike “Centre”, which is not in the Constitution. However, it has slowly become the prima facie term for the Union government.

But the issue of lopsided federalism is not fully recognised in India.

One question that was not fully resolved was the problem of the GoI Act, 1935. Not only was it a pointer to the proposed centralised federation later, it also very substantially shaped the Constituent Assembly. Candidates for membership in the CA had to be tax payers, either of income taxes or land taxes. This denied a majority of Indian adults the rights to vote. As Dr. BR Ambedkar stated in the CA in 1949, “in our Constitution we have ‘one man, one vote, one value’, but we do not have equality in ‘social’ and ‘political’ life.” He went on to say “how long shall we live this life of contradiction?”

So the GoI 1935 Act, which was British inspired, consequently had a unitarian bent, which had its impact on the Indian Constitution. From the Nehruvian period onwards, there was a tendency to concentrate power in order to ensure a more, rather than less, influential Union, to avoid fissiparous tendencies, as was the case with the reorganisation of States.

But now, with the development of states and Union Territories, we must concede that the “Iron Frame” of the Union-State-UT has increasingly become outmoded.

In sum, both states and UTs should be empowered. The Sarkaria Commission and other inquiries were too little, too late. But the political class must base their arguments on the spirit of the Constitution, and the GoI Acts preceding them.

Also read: SC gives back Delhi's elected government its powers — but misses a historical chance