This article was first published on The Caravan on 17 July 2018.
On 4 July 2018, the Supreme Court of India delivered its judgment in Government of NCT of Delhi vs Union of India, which, among other things, considered Delhi’s position as a union territory with special status. The court ruled that the chief minister, not the lieutenant governor, was the executive head of Delhi. Chief Minister Arvind Kejriwal and his government have taken this judgment as a victory for representative government. But while the autonomy of Delhi’s institutions and representative government has been the site of dramatic political jostling in recent years, it is hardly a new phenomenon. Over 70 years ago, questions about Delhi’s administrative and political set-up triggered conflict in the Constituent Assembly as well.
During the framing of India’s Constitution, the Constituent Assembly had to deal with three distinct administrative and political forms in India: the British provinces, the princely states and the chief commissioners’ provinces (renamed “union territories” in 1956). The chief commissioners’ provinces had a unique status—they were, for historical, political and practical reasons, directly under the control of the governor-general of British India. In most cases, they did not have representative-government institutions, such as provincial legislatures. The Constituent Assembly had to decide whether, in independent India, the chief commissioners’ provinces should continue to be centrally administered with little or no representative government.
On 30 July 1947, the lawyer Rati Ram Deshbandhu Gupta, representing Delhi in the Assembly, proposed that a new committee be set up, which would “suggest suitable constitutional changes to be brought about in the administrative systems of the Chief Commissioners’ provinces so as to accord with the changed conditions in the country and to give them their due place in the democratic Constitution of Free India.”
The Assembly agreed. Its president promptly appointed an ad-hoc committee that included representatives from the chief commissioners’ provinces. The committee, chaired by the veteran Congress leader Pattabhi Sitaramayya, recommended that Coorg, Ajmer-Merwara and Delhi be designated as “Lieutenant Governor’s Provinces.” They would have an elected legislature but the central legislature would have a concurrent power of legislation, even over the State List, and all laws passed in these legislatures would require the assent of the president. The Sitaramayya committee evidently thought that at the time that representative government should be introduced in the chief commissioners’ provinces, albeit with some restrictions.
Although it did acknowledge demands by some members of the Assembly—who did not want Delhi to have representative government—to treat Delhi differently from other chief commissioners’ provinces, the committee refused to give Delhi any special treatment. “We are, however, of the opinion,” it said, “that the people of the province which contains the metropolis of India should not be deprived of the right to self-government enjoyed by the rest of their countrymen living in the smallest of the villages.”
The powerful drafting committee disagreed. On 21 February 1948, its chairman, BR Ambedkar, submitted the draft constitution to the president of the Constituent Assembly, and in a cover letter noted the committee’s views on Delhi:
"So far as Delhi is concerned, it seems to the committee that as the capital of India it can hardly be placed under a local administration. In the United States, Congress exercises exclusive legislative power in respect of the seat of the Government; so too in Australia. The Drafting Committee has, therefore, come to the conclusion that a more comprehensive plan than that recommended by the ad hoc committee is desirable."
The drafting committee placed the administration of the chief commissioners’ provinces under the president of India through a lieutenant governor. The president had the power to create or continue legislatures in such a province. This went against the Sitaramayya committee’s recommendations, which wanted the chief commissioners’ provinces to have representative-government institutions. This was to be encoded into the constitutional text, not left to a decision by a future authority or institution.
In April 1948, a special committee set up to review the draft constitution before it was presented to the Assembly attempted to defuse the conflict. This committee instructed the drafting committee to prepare alternative provisions that reflected the Sitaramayya committee’s recommendations. The Constituent Assembly could then decide which set of provisions to adopt.
When Ambedkar presented the draft constitution on 4 November 1948, however, the alternative provisions were not included.
Gupta, who was lobbying for self-government for Delhi, was peeved. He urged the Assembly to accept the Sitaramayya committee’s report and rejected the drafting committee’s use of the examples of America and Australia:
"To my mind, great injustice is being done to the citizens of Delhi by dismissing the whole question in few lines by saying that, as it is not done in the United States and in Australia, therefore nothing can be done likewise in Delhi. I would like to ask whether it is not a fact that Moscow has a separate province and a provincial administration of its own. If Moscow, being the Capital of U. S. S. R. can have a separate administration, why can’t Delhi have one?"
He went on to argue that representative government for Delhi was a long-standing problem, but that there had been a consensus among various institutions regarding it:
"Since 1927 from every nook and corner of Delhi the cry is being raised that Delhi should have a separate administration of its own; even today a resolution to the effect has been passed by the Delhi Provincial Congress Committee. A similar resolution has also been passed at a provincial political conference. Chief Commissioner’s Advisory Council and the Delhi Municipal Committee have adopted similar resolutions. Similar resolutions have been passed in hundreds of meetings but the members of our Drafting Committee have completely ignored that; they have not cared to take note of that at all. I think it is a grave injustice."
On 1 August 1949, Ambedkar moved a new amendment. Previously, the drafting committee had proposed that the president of India would decide whether or not to introduce legislatures and other self-government institutions in a chief commissioners’ province, but this power would now be vested in the union parliament. Jawaharlal Nehru also supported the drafting committee’s decision:
"…the first thing that comes up for consideration is this that the situation in Delhi is not a static situation; it is a changing situation and if we put down any clauses in the Constitution, we rather petrify that situation. It is far better to deal with it in a way which is capable of future change, i.e., by Act of Parliament rather than by fixed provisions in the Constitution."
Nehru did not elaborate on the specific “situation” in Delhi, but one can extrapolate based on the immediate political context. While the Assembly was drafting the constitution, Delhi was reeling from two major events: the first was Partition and its accompanying violence, and the second, inextricably linked to the first, was the resettlement of refugees in the country. These issues deeply affected the socio-economic fabric of Delhi, and Nehru appears to have suggested that it was best to leave the question of administration and self-government in Delhi for Parliament to decide on later, after the constitution came into effect.
Gupta was not pleased with this development. He insisted that Delhi and other chief commissioners’ provinces were not getting a fair deal, but he eventually came around, albeit reluctantly. He hoped that the assurance that Nehru had made—that Parliament would consider self-government for Delhi after the enactment of the constitution—would be honoured. Ambedkar’s new amendment was adopted by the Constituent Assembly.
It would take the union parliament almost 42 years to give Delhi its own legislature, through the Constitution (Sixty-Ninth Amendment) Act in 1991. In the meantime, the autonomy of Delhi’s self-government institutions continued to be a matter of confusion and conflict, a phenomenon that became particularly acute after the Aam Aadmi Party won the Delhi elections in 2015 and came into power.
While the recent Supreme Court judgment implies that any controversy and conflict would be put to rest, one cannot now be so sure. Kejriwal has accused the lieutenant governor, Anil Baijal, of being “selective” in his acceptance of the Court’s judgment and of not adhering to its ruling that the executive power of the Delhi’s state government is “coextensive with the legislative power of the Delhi Legislative Assembly”—a charge that Baijal has refuted. While the Court’s constitutional interpretation might have made Delhi’s status less ambiguous, it is not clear whether this will improve political and administrative functioning in the state.