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TOPIC: General Studies 2

• Federalism

In News: The Parliament passed the Government of National Capital Territory of Delhi (Amendment) Bill, with the Rajya Sabha clearing it. The Upper House passed the bill with an 83-45 vote, following several hours of heated debate and walkout by several parties, including the Congress, BJD, YSRCP and Samajwadi party. 

The Bill – National Capital Territory of Delhi (Amendment) Bill

The Bill seeks to amend the Government of National Capital Territory of Delhi Act, 1991. It provides that the term government referred to in any law made by the Legislative Assembly of Delhi will imply the Lieutenant Governor. It also prohibits the Legislative Assembly of Delhi from making any rule to enable itself or its Committees to consider the matters of day-to-day administration of the National Capital Territory of Delhi.

The first is in Section 21, “Restrictions on laws passed by Legislative Assembly with respect to certain matters”. The Bill seeks to add a subsection making it clear that the “expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor”.

The second amendment is sought in Section 24, which deals with assent to Bills passed by the Legislative Assembly. The amendment seeks to add that the L-G will not assent to and pass on to the President for consideration any Bill which “incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly”.

Third, the Bill wants to add in Section 33 (“Rules of procedure”) that rules made by the Assembly for regulating its procedure and conduct of business shall not be “inconsistent with the Rules of Procedure and Conduct of Business in House of People”.

Also, “Provided that the Legislative Assembly shall not make any rule to enable itself or its Committees to consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions, and any of the rule made in contravention of this proviso, before the commencement of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, shall be void.”

Section 44 (“Conduct of business”) of the 1991 Act says that “all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor”. The amendment Bill seeks to add that before any executive action is taken in “pursuance of the decision of the Council of Ministers or a Minister” or to “exercise powers of the government”, the opinion of the L-G has to be obtained.

The Bill refers to clause (4) of Article 239AA of the Constitution, which states that there will be a Council of Ministers in Delhi to “aid and advise the Lieutenant Governor” and that in cases of difference of opinion between the L-G and the Ministers in making laws, the former will refer it to the President for a decision.

Criticisms:

One seeks to state clearly that the expression “government” will mean the Lieutenant Governor in laws made by the Legislative Assembly; the other says that the opinion of the L-G has to be sought for any executive action.

The Delhi government and Centre have been at loggerheads since the Aam Aadmi Party (AAP) came to power for the second time in 2015. One of the AAP’s biggest promises was to fight for full statehood for Delhi. While this has not been realised, and four areas – land, public order, police, and services – remain under the control of the L-G, the AAP had felt encouraged after a Constitution Bench of the Supreme Court ruled in 2018 that the L-G would be bound by the aid and advice of the Council of Ministers in matters that were not directly under the control of the L-G.

Chief Minister Arvind Kejriwal said the Bill was a way to curtail the powers of the state, and was against the order of the Supreme Court. “After being rejected by people of Delhi (8 seats in Assembly, 0 in MCD bypolls) BJP seeks to drastically curtail powers of elected government through a Bill in Lok Sabha today. Bill is contrary to Constitution Bench judgment. We strongly condemn BJP’s unconstitutional and anti-democracy move,” Kejriwal posted on Twitter.

Democracy

The Supreme Court, as the final interpreter and arbiter of the Constitution, said in State (NCT of Dehi) v Union of India: (2018) 8 SCC 501: “The exercise of constituent power is meant to confer democratic, societal and political powers on the citizens who reside within the National Capital Territory of Delhi that has been granted a special status.” The Court quoted with approval Jaganmohan Reddy J who had said in Kesavananda Bharati that democratic form of government is part of the basic structure of the Constitution.

Constituent Power

The powers and functions of the Delhi government were finally settled by the exercise of the constituent power of Parliament. The Constitution of India was amended in 1991 and Article 239AA was inserted to provide “Special provisions with respect to Delhi”. The Statement of Objects and Reasons made it clear that “Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man.”

Article 239AA used words and phrases that had acquired a meaning in every democratic country. Among them were ‘direct election from territorial constituencies’, ‘the Legislative Assembly shall have the power to make laws… with respect to any of the matters enumerated in the State List or in the Concurrent List’ and, most importantly, ‘There shall be a Council of Ministers …with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions….’ The Government of the National Territory Act, 1991, was made under Article 239AA to give effect to the provisions contained in that Article.

On July 4, 2018, the Supreme Court had declared that the “meaning of ‘aid and advise’ employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of the NCT of Delhi is bound by the aid and advice of the Council of Ministers”.

Connecting the Dots:

1. Bill introduced in Lok Sabha says ‘government’ in Delhi shall mean the Lt-Governor. What does it mean for the elected government, and how does this interpretation compare with the 2018 Supreme Court ruling?
2. The world has taken note of the fact that India is only ‘partly free’. Is Democracy in India diminishing every day? Critically evaluate.