Where the Chief Minister is the rubber stamp

Without being a full-fledged State empowered with federal sovereignty and constitutional powers both under the State and Concurrent lists, it might be almost impossible for any government in Delhi to govern

UNEASY LIES THE CROWN:Apart from the dynamics of there being a political risk to its existence, there is a static legal impediment to the mission of the Delhi government. Picture shows Chief Minister Arvind Kejriwal at the Secretariat. — PHOTO: PTI

A new political outfit, the Aam Aadmi Party (AAP), is getting on to the seat of “power.” But, its constitutional authority is shrouded in “powerlessness” because of various Union Territory limitations.

Meanwhile, in the national capital, the common man looks up to the AAP hoping that it can change the shape of governance — from the present mess to fresh pro-people governance. That hope is associated with several constitutional doubts about the real powers that a Chief Minister of Delhi could exercise to fulfil poll-promises.

A section of the media has compared the AAP’s rule with that of a “one day Chief Minister” in the Bollywood movie Nayak . This satirical remark finds base in the fate of minority governments supported by the Congress party in the past. Apart from the dynamics of there being a political risk, there is also a static legal impediment to the mission of the AAP. The strange problem is that New Delhi is neither a State nor even a glorified Union Territory (UT).

The administrator

The real ruler in the seven Union Territories is the Administrator. He continues to be more powerful even in Delhi and Puducherry where there are Legislative Assemblies and Chief Ministers with Council of Ministers. In governments in States, the Governor is generally called a rubber stamp, but in Union Territories, the Constitution itself has converted the Chief Minister into a rubber stamp.

A Chief Minister is generally regarded as first among equals in the ministers in the Council. In the Union Territory also, the Chief Minister leads a council which can be superseded by the de facto head administrator or de jure head, the President. Where does the Chief Minister stand? In the scheme of administration of a Union Territory under Part VIII of the Constitution and the Government of Union Territories Act, 1963 (UT Act), the Legislative Assembly is little more than a nominal force while the Council of Ministers is a recommendatory body of the executive while real powers are reserved with the Administrator and his ultimate boss, the President. Article 239 says the Administrator can act “as he thinks fit,” while the UT Act says “he can act in his discretion, and his decision shall be final.”

Compared to the Governor of a State, the Administrator of a UT is more powerful, and not just a nominal head. Both Article 239AA of the Constitution and UT Act, Section 44 confer enormous powers on the Administrator. Article 239AA (4) says in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President. Pending such decision, it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

Thus, according to Section 44 of the UT Act of 1963, the Administrator can differ with the Chief Minister or Minister and have his way “as he deems necessary.” Though he is under an obligation to refer it to the President, he will still be competent to make decisions in urgent situations.

Another significant feature is: the Parliament has power, as per Article 239AA (7) and (8), to change the provisions of the UT which will not be deemed to be the Amendment to the Constitution. The Union Government can exercise executive and legislative power on all State subjects with reference to a Union Territory, which is otherwise not possible in a full-fledged State Government. The whole scheme of Constitutional governance gets subverted “constitutionally” in a Union Territory, whether it has a legislative Assembly with people’s representatives or not.

In an ordinary State, it is very difficult to impose President’s Rule, especially after the constitutional amendments and Supreme Court’s judgment in the Bommai case. But suspending the Council of Ministers in a UT is very simple, i.e., the President can issue a direction suspending any provision relating to Council of Ministers as provided in Article 239AB.

According to Article 244, the President has powers to make regulations for a UT unless there is a legislature for that State. Even if there is a legislature which passes a law, the Administrator can reserve it for the assent of President, who might reject it, except in cases of a money bill. Even the Union Cabinet has no role.

While the Governor appoints the Chief Minister in States, the President appoints the Chief Minister and Ministers for Union Territories, who will hold office during the President’s pleasure. The President can also make rules (Section 46) for allocation of business to the Ministers. The President can also suspend any provision of this Act during “Emergency” based on a report of the Administrator under Section 51.

The Council of Ministers can aid and advise the Administrator and the President will have the advice of the Union Cabinet. The Administrator can override the advice while the President can act as he thinks fit. Thus, with reference to a UT, the role of democratic representative bodies and the Council of Ministers emerging out of it is almost ruled out.

Weakening amendment

As if the powers vested in the Union were not enough, Parliament by a constitutional amendment, divested executive and legislative powers over very key subjects like “public order, police, land and revenue” from the Delhi UT and vested them with the Union Government. The Delhi Legislative Assembly cannot exercise executive and judicial powers over these subjects listed in List II — “States List” as per Article 239AA.

Without being a full-fledged State empowered with federal sovereignty and constitutional powers both under the State and Concurrent lists, it might be almost impossible for any government in Delhi to govern as such. However, the AAP government can still offer a very responsive government within the sphere of its executive powers if it has political grit and willpower in fulfilling promises within these limitations and legal impediments.

(Madabhushi Sridhar is Information Commissioner at the Centre).