Is India’s federalism at stake?
The Government of National Capital Territory of Delhi (Amendment) Act, 2021, passed by Rajya Sabha following an uproar and subsequent walkout by the Opposition, on March 24, has once again revived the fight over jurisdictional powers between Delhi’s elected government, the Centre and its nominated administrator – the Lieutenant Governor. Delhi chief minister Arvind Kejriwal, who had won in July 2018 elections following a five-judge Constitution Bench verdict from the Supreme Court that had settled Delhi’s power arithmetic in the elected government’s favour, has decided to challenge the amended GNCTD Act in the apex court. Let us see the contents of this bill.
Contents of GNCTD bill
The bill proposes to amend Sections 21, 24, 33 and 44 of the 1991 Act. It also proposes that the “government” in the National Capital Territory of Delhi meant the Lieutenant-Governor of Delhi. It gives discretionary powers to the L-G even in matters where the Legislative Assembly of Delhi is empowered to make laws. It seeks to ensure that the L-G is “necessarily granted an opportunity” to give her or his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is implemented. It adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister. Sadly the bill bars the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.
Federal relationship between the L.G and Delhi Govt.
Frequent tussles have been witnessed between the Delhi government and the L-G of Delhi since 2015. The primary reason behind it was the lack of clarity over Article 239AA. The provision of Article 239AA(4) seems to give primacy to the L-G. Using this, the LG was able to undermine the will of the elected government. A case also filed in the court about the L-G’s power of discretion. In the
Government of NCT of Delhi v. Union of India case 2018, the Supreme Court defined the limits of L-G’s discretionary powers. The important points of that judgement were,
L-G is bound by the aid and advice of the council of ministers except in subjects of land, public order and police.
Executive decisions do not need the concurrence of the Lieutenant General. Further, the court also held that the L-G has no powers to overrule the decisions of the elected government.
The difference of opinion has to be referred to the president under Article 239AA(4) provision.
The Lieutenant Governor cannot act mechanically and refer every decision to the president.
Only genuine cases of public interest can be referred to the President.
Before referring a bill to the President, the L-G has to consider the principles of collaborative federalism, the concept of constitutional governance, objectivity, etc.
Executive power rests with the council of ministers of NCT, Delhi. The union government has no overruling powers with respect to the executive powers.
This verdict came as a boon to the Delhi government and it brought some good implications. It established a situation of calm between the Delhi Government and the L-G.
The Delhi government stopped sending files on executive matters to the L-G before the implementation of decisions. This resulted in swift decisions like:
Free bus rides to women, doorstep delivery of rations to the city’s residents, free electricity to households that are using less than 200 units of power. Mechanization of sewage cleaning operations. Moreover, during the COVID-19 pandemic, the government restricted Delhi’s medical resources to its residents alone.
The Union Response
Union Minister G Kishan Reddy claimed that the Bill does not propose to bring any Constitutional amendment. He insisted that the Bill only seeks to clear certain ambiguities in the law.Reddy claimed that that the Bill neither takes away any right from the Delhi Government nor it confers any new rights on the LG. He said that the proposed amendments are to clarify the points raised after directions from the Supreme Court.BJP MP Bhupender Yadav insisted that Delhi is not a full-fledged State. He said that the territory is essentially a Union Territory whose head, as declared under the Constitution, is the LG.He stated that the proposed amendments to the 1991 Act are in line with General Clauses Act, 1897, which states that the head of the Central Government is the President and that of the State Government is the Governor. He said that since Delhi is a union territory, its head shall be the LG by the same analogy. So far as proposed restrictions on the powers of the Delhi Legislative Assembly are concerned, he said that the same are only being standardized by bringing them in line with the Lok Sabha rules as part of "good governance". He clarified that the Delhi Assembly Committee may look into Bills, Budgets, etc. However, it cannot look into day-to-day administration of the Government. "If the Committee starts looking into criminal cases, what happens with powers of executive police," he asked. He stated that the Supreme Court in its judgment said that the LG needs to be informed of all the decisions that are made by the Council of Ministers. He insisted that the Bill is simply intended to give effect to that observation.
Equating the L-G with the government simply undermines the legitimacy of the elected government thereby disrespecting representative democracy. Further, the bill goes against the spirit of the 2018 verdict. The provisions such as getting the compulsory opinion from the L-G are against the verdict. The NCT of Delhi (Amendment) Bill restricts the Delhi government from inquiring into executive matters. The Delhi assembly at present is examining multiple issues ranging from riots to the environment. This disregards the ideal of democracy conceived for the NCT of Delhi by Article 239AA of the Constitution. The NCT of Delhi (Amendment) Bill if passed would be a huge setback for Delhi’s quest for full statehood because the L-G gets precedence to the Delhi government. The bill empowers L-G to specify certain matters on which his opinion must be taken. This can curtail the autonomy that any elected government legitimately requires for governance. Providing excess powers to L-G can also distort the federal equilibrium. The Federal structure of India is put on stake now. The centre can use this bill as a precedent to curtail the powers of other states in the future. If this type of bill becomes an act in all the states then sadly India is going to lose it's federal character.
The new bill should be reconsidered in the light of Justice D Y Chandrachud’s note in the 2018 verdict: “In a democratic form of government, the real power must subsist in the elected arms of the state". The government at the centre and state must cooperate to make sure that L-G can discharge its constitutional function. At the same time, they need to avoid L-G so it doesn't become a hindrance to development. This unconstitutional bill should be withdrawn otherwise the Elected government of Delhi will just become a puppet of the Lieutenant governor.
By Souvik Biswas
B.A. Hons History at Hindu College
Souvik is a first year student from Hindu College, pursuing History Hons. He is also a writer and coordinator of The Statesman Paper, Kolkata edition since the year 2016 to the present day. Being marked as a bibliophile and cinephile, Souvik states that he hates billionaires and dreams of a casteless and classless society.