‘THE PARADOX OF INDIAN FEDERALISM: in reference to legislative

powers of NCT (NATIONAL CAPITAL TERRITORY) OF DELHI in

comparison to division of power between Union-States.’

The basic structure of Indian Constitution represents Federalism as a principle that

divides legislative, executive, administrative and financial powers between the Centre and
States. The Constitution itself provides for provisions related to division of powers and
not by passing any legislation. In the light of Supremacy of Constitution, this article aims
to analyze the situation of NCT Delhi and other states of India in context of India as a
Federation. Unlike Delhi, the other states of India enjoy the status of statehood and
independent of their state’s legislation. According to the 7th Schedule of Indian
Constitution, provides three lists i.e., Union List- list I, State List- List II & Concurrent
List- List III, that specify division of powers between Centre & States. Each list provides
for subject matters on which either state or union have power to make laws. If the subject
matter falls under Union List then the central government has the power to make law on
those subject matters. Similarly, it applies to State List as well and those subject matters
falling under concurrent list may be dealt by both union or state whosoever legislates in
accordance with the Indian Constitution without violating the basic structure. On the
other hand, the situation of power sharing and law making is different in case of NCT of
Delhi. Specific subject matters like Public Order, Police & Land. Further analyzing the
powers of Delhi as NCT by comparatively studying it with the powers shared by Union-
States in law making on subject matters as Constitution provides under the Articles
239AA-239AB & 7th Schedule respectively. The situation of power sharing and law
making is different in case of NCT of Delhi. Specific subject matters like Public Order,
Police & Land. Further analyzing the powers of Delhi as NCT by comparatively studying
it with the powers shared by Union-States in law making on subject matters as
Constitution provides under the Articles 239AA-239AB & 7th Schedule respectively.
Also discussing the current scenario of Delhi after the proposing 2021 NCT Amendment
Bill. Delhi has a peculiar federal architecture. Before the 69th Constitutional Amendment
Act of 1991, Delhi was a Union Territory. The amendment re-designated it as National
Capital Territory of Delhi and designated the administrator of Delhi as the Lieutenant
Governor (LG). Further, it created a Legislative Assembly and a Council of Ministers for
Delhi. The assembly can make laws on all matters of the State List except Public Order,
Land & Police. The Council of Ministers (CoM) headed by the Chief Minister aid and
advice the LG in exercise of his functions except in so far as he is required to act in his
discretion. The recent cases of conflicts between the LG and the government have largely
happened due to assertion of this discretion by the LG with regards to matters such as
appointments, like that of Parliamentary Secretaries. The ambiguities with respect to the
discretion of LG have resulted in a tussle between his office and the government.
The government has accused the LG of acting on behalf of the centre to prevent proper
functioning of the government. It claims that the LG should act on the aid and advice of
CoM on matters except those stated in the amendment. Since Delhi is the seat of both the
national capital territory as well as that of the central government, the centre is bound to
have a say in the matters of the city. At the same time, the LG should not interfere in the
day to day running of the government. The LG has a dual role to play as an administrative
and constitutional head. A balance of jurisdictions needs to be determined so that the
citizens don’t suffer as a result of the policy paralysis happening due to this tuff war. The
ultimate loser is governance and people of Delhi.
This impasse is not new altogether. Since 1967, when the parties ruling at centre and state
started varying, there has been trust deficit between the state/UT govts and the governors
or administrators acting on behalf of centre. In Delhi also, successive governments have
asked for more power and full statehood. It has just been magnified in current times due
to presence of strong leadership at both central and state level. There is a need for
harmonious functioning based on the spirit of co-operative federalism between the two.
In cases of other states, the central government has less intervention unless it amounts to
national importance. For an instance, recently during Covid-3rd Wave breakout the
shortage of oxygen supplies in Delhi Hospitals resulting in deaths of many. Even after
Delhi Government requesting to Central Government to take actions no good was done.
Other than this, in case of Delhi, the LG of the Delhi and the government face conflict of
interest that affects administrative and legislative decisions made for NCT of Delhi. Delhi
Statehood Status has always been an issue which the state struggles till date. As the Delhi
Government has certain restrictions on making laws on Public order, Law and Police
matters. Under 7TH Schedule the division powers with regard to subject matters has been
defined. The Union list provides for subject matters like defence, war, military etc on
which central government can make laws. Similarly, under State List the subject matters
like public order, police, public health and sanitation etc on which state has power to
legislative. However, this status of NCT of Delhi prohibits Delhi Government to legislate
on such matters which other states can.