‘Law of land doesn’t permit referendum’

Work on the referendum will be done under the overall guidance of the urban development department, whose principal secretary is said to have been entrusted with the overall job, from the concept note to the conclusion of the referendum.

A source revealed that all these decisions were reportedly first taken at a high-level meeting, chaired by chief minister Arvind Kejriwal himself, about three months ago. A copy of the document accessed by this newspaper reveals that the government had set November as the deadline for holding referendum after seeking approval of the competent authority. The document, however, did not spell out the details on the nomenclature of the so-called competent authority.

City water minister Kapil Mishra had earlier gone on record, saying that his government could go to any extent to get full statehood status for Delhi.

Several constitutional experts and bureaucrats are of the view that India’s constitutional history and the law of the land confirm that there can’t be any referendum as no such provision exists in the Constitution of India.

Despite reservations expressed by the experts, the AAP government is keen to hold a referendum on the issue of statehood for Delhi and the CM is said to have already sent a note to various departments, asking them to “draft a law and create machinery” for such a practice.

Constitutionally, Delhi is a quasi-state with the lieutenant-governor (L-G) as the state head. The L-G also has control over law and order and land in the National Capital Territory (NCT). The status of Delhi is more than that of a Union Territory and less than a state.

But the constitutional experts say that the idea of achieving full statehood for Delhi through referendum was not only an impractical proposition, but unconstitutional as well.

The experts argue that as a democratic nation, India holds election every five years that serves as a referendum of the people of this country. In 1911, when British India’s capital was shifted from Calcutta to Delhi, the British government ensured Delhi was not classified as a state, but it was given the status of the capital of British India.

The father of Indian Constitution, Dr B.R. Ambedkar, who as chairman of the Constitution Drafting Committee, after studying the federal structure of the governments in the US, Australia and Canada, had noted that the national capital can’t be under a state or a local government.

Even the States Reorganisation Act, 1956, didn’t merge Delhi with any other state and left it as the national capital.

In 1987, Sarkaria Committee (later called Balakrishnan Committee) was appointed to look into the issues connected with the administration of Delhi and the report was submitted in 1989. In accordance with the recommendations of the committee, Parliament passed The Government of National Capital Territory of Delhi Act, 1991, besides other legislations. Granting full statehood to Delhi was ruled out.

A senior lawyer said that for a constitutional amendment, a simple majority in Parliament won’t do. “It requires 2/3rds majority.” A political analyst said: “Going for a referendum, is like seeking referendum for Jammu & Kashmir, as demanded by separatists, which is dangerous.”

Former secretary, Delhi Assembly, S.K. Sharma, had gone on record saying that an elected government shouldn’t talk in an extra-constitutional manner, which is dangerous. He said there were ample references in the constitutional history and legislations were passed that clearly show that National Capital Territory (Delhi) can’t be under local government or local administration.

Another strategic affairs analysts said in India, referendum was sought only once (actually it was Goa Opinion Poll) in 1967, to decide the future of the Union Territory of Goa, Daman and Diu within the Indian Union.