Author: Vivek Kumar, I year of B.A.,LL.B from Rajiv Gandhi University of Law, Patiala, Punjab.
“Delhi is the unfortunate province which, even after the achievement of freedom, has been denied democracy and the application of republican principle.”
These words were spoken by Mohd. Hizfur Rahman in the Constituent Assembly debate on 2nd August, 1949. The question vis-a-vis the status of Delhi is an old and complicated one. Delhi has struggled for a long time to win a government of the people, by the people, and for the people.
It was only in 1991, that a special status was conferred on Delhi and a legislative assembly was established. For three decades that followed, the people of Delhi have chosen their own government, albeit a limited one. With the passing of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, by both the houses of the parliament, the situation seems set to change; and the words of Mohd. Rahman echo louder than ever.
INTRODUCTION
Recently, the Rajya Sabha passed the GNCTD (Amendment) Bill, 2021 amid strong protest from the opposition. The bill has been criticized on various counts by the opposition, the media, and the legal experts, who have labeled it as ‘unconstitutional’ and against the spirit of democracy. It is also alleged that the new bill is aimed to undermine the authority of an elected government in the capital. The bill, passed by the upper house on March 24, seeks to give unfettered powers to the Lieutenant-Governor over the elected government.
WHAT ARE THE CHANGES ENVISAGED IN THE BILL?
It provides, under section 2, the expression "Government” shall be understood to mean the Lieutenant Governor. This means that the title of ‘government’ will be vested in an appointed official, instead of the legislative assembly elected by the people of Delhi. Section 3 of the bills adds an extra clause in section 24 of the 1991 Act giving the Lt. Gov. the power to refuse to give assent to any bills passed by the legislative assembly “which incidentally covers any of the matters which fall outside the purview of the powers conferred on the Legislative Assembly.”
Further, section 4(b) prohibits the legislative assembly from making any rules enabling itself, or any of its committees, from: (i) considering any matter concerning the day-to-day administration of the Capital; or, (ii)conducting inquiries in relation to the administrative decisions” However, one of the biggest changes envisaged in the amendment bill is provided under section 5. It seeks to amend section 44 of the 1991 Act by making it compulsory for the legislature to take the opinion of the Lt-Gov before taking any executive action.
ANALYSIS
In 1987, the Balakrishnan committee report argued for the restoration of the Legislative Assembly after it was abolished in 1956 and also suggested special status for the union territory under the constitution.
The parliament amended the constitution through the Constitution (69th Amendment) Act, 1991. This amendment added art. 239AA and 239BB to the constitution and provided for a legislative assembly in the capital. The Governance of National Capital Territory of Delhi Act, 1991, was also passed to supplement the constitutional amendments. This model of governance in the capital has continued for three decades.
The power struggle between the central government and the Delhi government is nothing new, but ever since the victory of Aam Aadmi Party (AAP) in the 2015 Delhi Assembly elections, the situation has been aggravating. Many times, the two parties have found themselves at loggerheads with each other over the issues of administration. The struggle eventually ended up in the Supreme Court which adjudicated upon the peculiar governance structure of the national capital.
The five judge benches in Government of NCT of Delhi v. Union of India deliberated upon matters like the ideals of representative governance, constitutional morality, and pragmatic federalism.
The judgment, penned down by then Chief Justice Dipak Misra, noted that the sixty-ninth constitutional amendment act, which inserted art. 239AA, envisaged a representative form of government for the national capital, in the form of a directly elected legislative assembly. It also mandated the Lt-Gov to act on the aid and advice of the council of ministers; except in cases where the matter requires presidential scrutiny. Even with an understanding that the UTs enjoy less independence than the states, it is hard to digest that the Lt-Gov, an unelected official, can be synonymous with the Delhi Government, as envisioned in section 2 of the amendment bill. This is clearly against the principles of pragmatic federalism and federal balance as deliberated by the Supreme Court.
The whole purpose of art. 239AA was to give a unique status to the UT of Delhi. A status quite different from the other such territories. The people of Delhi have a greater say in how it should be governed as compared to other UTs. A reading of the judgment clearly establishes that there was an intention of creating separation of roles between the Delhi Government and the Lieutenant-Governor; wherein the former is the legislative authority and the latter is a representative of the central government; at least in matters over which the Delhi government has power to legislate. By making the opinion of Lt-Gov mandatory, the Central Government seeks to move away from this understanding of separation of power. Without any power to make any independent decisions, the Delhi Legislative Assembly will be only a vestigial organ.
Section 4 of the amendment bill is another transgression by the central government over the autonomy of the capital. It prohibits the assembly from meddling in day-to-day matters of the capital and also prohibits it from setting up committees to scrutinize any such matters. This will enable the administrator to act independently and without any responsibility to the legislature. Not only is administrative accountability to the elected representatives important in a democracy, it is absolutely essential; and it is also a part of the basic structure of our constitution.
The end of the legislative Assembly’s power to scrutinize administrative acts will imply the end of democracy in the national capital.
Section 5 of the amendment bill mandates the council of ministers to take the opinion of Lt-Gov before taking any executive action, in any matter notified by the Lt-Gov, in accordance with the clause 4 of the art. 239AA. The Supreme Court, in the judgment, had noted that clause 4 of art. 239AA cannot be employed in “every matter”.
It held that the power Lt-Gov under art. 239AA is not a general rule, but an exception to the rule; hence it should be exercised only in exceptional circumstances.
By giving the power to the Lt-Gov to notify any matters which require his concurrence, is clearly against this understanding of the clause. The Lt-Gov can conveniently seize power from the Delhi Government by notifying any matter of conflict to require his concurrence.
Furthermore, the Supreme Court had rightly observed that no interpretation of art. 239AA suggests that the concurrence of Lt-Gov is necessary in any decision taken by the council of ministers. Indeed, it will be against the idea of collective responsibility and democracy to require an elected government to seek concurrence from an appointed official.
It can be said that executive power should always exist with judicial power. No legislative power can be exercised without the accompanying executive power. The new bill clearly seeks to remove the executive power from the Delhi Government and place it in the hands of the Lt-Gov. This clearly goes against the legislative intent behind the sixty-ninth amendment of the Constitution. Moreover, the provisions will be rendered futile if the government, chosen by the people, loses its powers to devise laws or implement policies. If the bill is passed in both the houses, the Delhi Government will be forced to assume the role of a municipal body, quite reminiscent of the Municipal Council set up in 1966; without any executive powers, the only role of the body will be to advice the Lt-Gov.
CONCLUSION
The struggle between Delhi and the Central Government is not a new phenomenon; rather, it traces its origin to 1951, when a legislative assembly was established in the capital. The first Chief Minister of Delhi, Chaudhary Brahm Prakash, had to resign after a long tussle of power between him and Govind Ballaph Pant, the Union Home Minister. Every government at the centre has had its eyes on the National Capital. However, there has never been such an onslaught on the autonomy and electoral democracy at the heart of the country. The ideas of collective responsibility are neglected with the passing of this bill.
It is certain that the amendment bill will be challenged in the Supreme Court, and considering the previous decision of the Court in this matter, it is probable that the decision will be in the favor of the Delhi government. However, the Central Government should respect the autonomy of the national capital and the rights of the people of Delhi to choose their own government.
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