Delhi’s Legislative Assembly has, by its resolution dated December 22, 2015, directed the Government of the NCT Delhi to set up a commission of inquiry to probe the many allegations that surround the Delhi and District Cricket Association (DDCA).
Earlier, in July 2015, the Union Ministry of Youth Affairs and Sport had written to the Delhi government, asking it to act on the irregularities that are rife in the DDCA. Following this, the Delhi government appointed a three-member committee, which too, has recommended a commission of inquiry. Last month, the Delhi government has announced the establishment of such a commission, to be headed by Gopal Sunramanium.
The abysmal state of the DDCA has long been an open secret. At the imminent prospect of this becoming more open than secret, it appears that the Centre now feels differently about the appropriateness of the action that it had earlier sought from the Delhi government. It has now declared that the Delhi government is powerless to constitute any commission and is not an “appropriate government” within the meaning of the Commission of Inquiries Act, 1952. The Lt Governor’s office has, in a letter, communicated this ‘decision’ of the Ministry of Home Affairs to Delhi’s chief secretary for onward transmission to the Delhi cabinet. The burden of the letter is that the Delhi government is neither the “Central Government” nor a “State Government”, and to set up a commission under the Act it must be the one or the other.
Delhi’s unique status
This is not the first time that Delhi’s unique legal status has come up between the Centre and Delhi’s popularly elected government. Delhi has a chequered history and is, today, a Union Territory with some attributes of a state. In the First Schedule that lists India’s territorial units, Delhi is a UT, but it has been conferred all but three of the legislative and executive powers that flow from the Lists II and III of the Seventh Schedule. Delhi is not like other full-fledged states. Equally, it is not like other UTs.
Article 239AA was brought into the Constitution by the 69th amendment to ensure that Delhi will have a council of ministers answerable to a legislative assembly chosen by direct election. Like other states, Delhi’s assembly can make laws on matters in the state and the concurrent Lists, and the executive government can implement policy on all those matters. Unlike other states, however, there are two important limitations. Delhi cannot legislate or formulate policy on the police, public order or land issues, though these are state subjects. On these three and all other subjects in the state and the concurrent list, parliament continues to have the power to make laws affecting Delhi. If there is a difference of opinion between the Lt Governor and the Delhi cabinet on any matter, it shall be referred to the President, and in the meantime, any urgent action in that regard will be taken by the Lt. Governor.
In sum, the Delhi assembly’s legislative powers will give way to any law actually made by parliament and on occasion, the Delhi government’s executive policy may be held up by a presidential reference; but in law, every move of the elected legislature and government is not in thrall to the Centre. So, whether Delhi does or does not function as a state is really a matter of context, but when the Delhi government functions within the limits set by the Constitution, it can only function as a state government. It is not a delegate of the Centre as the Lt Governor is. The Lt. Governor or administrator as the President’s delegate is no longer the beginning and end of the Delhi government. The government of the National Capital Territory of Delhi is today an entity in itself. What falls within its sphere of functions is a question that can be asked, but within this sphere, it cannot be doubted that it is a state government.
Is the DDCA within the Delhi assembly’s legitimate sphere of functions? Sports, entertainment and amusements are entry 33 of the state list of Schedule VII. Inquiries pertaining to matters in the state list are entry 45 of the concurrent list. An inquiry into a matter of sports is certainly one within the competence of the Delhi assembly and therefore within the executive reach of the Delhi government. Sports is not one of the three subjects barred to the Delhi legislature.
The Commissions of Inquiries Act 1952 defines “appropriate government” with reference to the subject matter of the inquiry. If the subject matter is in the state or the concurrent list, then the appropriate government is the state government and if it happens to be in the Union or the concurrent list,then it is the Central government. The test then, is whether the subject matter is within the jurisdiction of the government concerned as per Schedule VII, and not the reckoning of the region of operation as per Schedule I.
The ‘appropriate government’ under the Act is subject specific, and has nothing to do with the nomenclature of the territory concerned. If there is a state government with administrative control over the subject, that it may govern a UT is irrelevant. Most UTs have no legislature, but Delhi has one, which can pass laws on the topic of sports. Its government can formulate sports policy. Certainly, if parliament has another law on the very matter, Delhi must yield, but that is not the case here.
‘Appropriate government’ has been interpreted by courts to mean various things depending upon the context. The definitions in the General Clauses Act, are all qualified by the words “unless there is anything repugnant in the context”. Article 3(60) of this Act defining “State Government” as meaning the Central Government in relation to a UT, is completely repugnant to the express constitutional scheme of the 69th amendment, for Delhi. It is also contrary to the purpose of the Commissions of Inquiries Act which is to enable the government concerned with a sphere of activity, to order inquiries affecting the same. The General Clauses Act, upon which the Home Ministry’s decision relies has never prevented courts from giving a functional interpretation to terms such as “appropriate government” and “state government”, but this wisdom has completely eluded the Centre.
If the MHA’s logic is followed to its logical consequence, the Delhi government can do simply nothing and will be exempted from all duties cast upon the ‘state government’ under the Industrial Disputes Act, the Domestic Violence Act, and a host of socially relevant laws. The MHA has chosen to unnecessarily burden itself with the task of constitutional interpretation, and with rather dismal effect.
The Act of 1952 enables “the appropriate government” to constitute a Commission of Inquiry into matters of public importance. Such a course is, in fact, mandatory, when a resolution in this behalf is passed by Parliament or a State Legislature. The Constitution and other laws recognise resolutions by Parliament or State Legislatures for diverse purposes. Unlike Bills, resolutions of legislatures do not need the President’s or the Governor’s assent to take effect. While the Lt Governor of Delhi may differ with the Council of Ministers and refer a matter to the President, the same is not possible with a resolution passed by the Delhi Assembly.
The Assembly has passed a resolution, that a Commission be constituted to probe the DDCA, a subject that is well within its competence as sports is a state subject. Is the Delhi Government powerless to fulfil the mandate? Can the Lt. Governor, whose concurrence is unnecessary for the Assembly’s resolution, nonetheless stymie it? Is the democratically elected government of Delhi powerless to set up an inquiry into a matter of public concern? Where the Constitution intends a democratic government for Delhi, albeit with severe limits, can the limits be stretched beyond its express intent? The legal import of these questions cannot be divorced from the political.
A limit is by its nature is a demarcation, suggesting that there is something to limit. Article 239AA confers powers upon Delhi’s Government, and sets limits on these powers. The Centre’s letter suggests that there is nothing to limit, on the pretext that Delhi does not have any State Government at all save the Centre. It is therefore the Centre that has crossed the line of legality by usurping what has been given to the Legislature and the Government of Delhi by the Constitution, without following the rules set by the Constitution for Parliament or the President to enter into those realms. The import of the Home Ministry ‘decision’ is that it has converted limits set by the Constitution into a virtual abrogation of democratic principles of governance.
Sarim Naved is a Delhi-based advocate