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Insights into Editorial: Rajya Sabha Approves Bill Giving Primacy to Delhi LG

 

 

Context:

Parliament approved a Bill giving primacy to Delhi’s Lieutenant Governor (LG) over the elected government, with the Rajya Sabha passing it amidst an uproar from some opposition parties and some others walking out of the house.

The bill gives greater powers to the Lieutenant Governor (LG) to a certain extent while ensuring more accountability of the Delhi Legislative Assembly, however, within the constitutional framework.

According to the central government, the bill seeks to amend the law relating to the running of the National Capital Territory of Delhi and give effect to the interpretation given by the Supreme Court judgments on Delhi’s governance structure.

 

Concise of Parliamentary democracy:

Parliamentary democracy, with a cabinet form of government, is part of the basic structure of the Indian Constitution. Its first article reads, “India that is Bharat shall be a Union of States.”

When the Constitution came into force, there were four kinds of States, called Parts A, B, C and D States, with the last two being administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.

The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.

As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain.

 

Amendment to the Government of National Capital Territory of Delhi Act, 1991:

The Ministry of Home Affairs’ statement on “objects and reasons” of the Bill stated that Section 44 of the 1991 Act deals with conduct of business and there is no structural mechanism for effective time-bound implementation of the said section.

Also, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing order thereon.

Section 44 of the 1991 Act says that all executive actions of the LG, whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the LG.

 

Major Highlights of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, Soon to Be A Law:

The passage of the Bill will mean that the Delhi government will now have to seek the opinion of the LG before taking any executive action.

The Centre has maintained that the Bill is in line with the Supreme Court’s July 2018 ruling on the ambit of powers of the LG and the Delhi government after a series of run-ins between the two.

  1. Firstly, the bill redefines Government as the LG for Delhi and it would apply to any law made by the Legislature in Delhi.
  2. Two, through Section 3 of the bill passed, there will be an extension to the powers of LG by adding a new clause to Section 24 of the 1991 act which deals with the assent to the bills.
  3. Within this section, the additional clause via the amendment will ensure that it now covers any matters that fall outside the purview of the powers conferred on the Legislative Assembly.
  4. The new bill also makes an amendment to Section 33 of the 1991 act which dealt with the rules of procedure.
  5. The act of 1991, in Section 33, says that the Legislative Assembly may make rules for regulating, subject to provisions of this act, its procedure, and its conduct of the business.
  6. However, the amendment shall add ‘which shall not be inconsistent with the Rules of Procedure and Conduct of Business in House of People’ at the end of conduct of the business.
  7. Against ‘provided that’ in the 1991 act, the amendment will add a clause to Section 33 to extend the meaning.
  8. Now, the legislative assembly will not make any rule to enable itself or its committee to consider matters of the day-to-day administration of Delhi or conduct inquiries in relation to the administration of Delhi. Also, most importantly, the provisions are sought to be made retrospective, thus voiding all such existing committees.
  9. Through Section 5 of the amendment, an additional clause will be added to Section 44 of the 1991 act that deals with the conduct of business.
  10. The additional clause makes it compulsory for the government to obtain the opinion of the LG on all matters before any executive action can be taken, ensuring accountability.
  11. This also ends the ambiguity that persisted when it came to time-bound implementation of the laws and the confusion surrounding matters where LG consultation was necessary.

 

Concerns related to the passed bill:

  1. Many constitutional experts are of the view that the proposed bill is the very antithesis of what the Court has said.
  2. They held that the Bill, if it becomes law, will wholly undermine the Court’s efforts to strengthen the elected government vis-à-vis the appointed Lieutenant Governor.
  3. By conflating the government of Delhi with L-G, the bill blurs the distinction between the elected government and L-G.
  4. Further, by requiring L-G’s opinion before the elected government can take executive action, it effectively renders the elected government powerless.
  5. Moreover, the clause that declares void any rule that empowers the Assembly or its Committees to discuss any matter of day-to-day administration or conduct enquiries amounts to a rollback of representative government.
  6. The bill contradicts the 2018 judgment, which unambiguously clarifies that the council of ministers with the chief minister at its helm is the executive head of the government of Delhi.

 

Points raised by other members of Parliament:

  1. The Bill effectively reduces the elected government to a mere vestigial organ and elevates the centrally appointed LG, to the position of a Viceroy with plenipotentiary powers.
  2. Simply put, the elected government in Delhi can do nothing, if the LG does not permit them to so do.
  3. It further provides that before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, under any law in force in the Capital, the opinion of Lieutenant Governor shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.
  4. The population of Delhi which counts among the highest in the world, will have an unrepresentative administration.
  5. It will be ruled by an appointed LG, who can only be changed if the rest of the country, decides to change the Central government.
  6. There can be no recourse to the ballot box to hold to account an unelected, centrally appointed government functionary.
  7. It is quite likely that the amendment act will end up being challenged in the constitutional courts.
  8. Opposition parties also termed the Bill as “unconstitutional” and claimed that it will fail judicial scrutiny. They demanded that it be examined by a Select Committee.

 

Conclusion:

Parliament envisaged a representative form of Government for the NCT of Delhi.

The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.

The Supreme Court has already cautioned Interpretation cannot ignore the conscience of the Constitution.

That apart, when we take a broader view, we are also alive to the consequence of such an interpretation.

If the expressions in case of difference and on any matter are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set-up, although different from States as understood under the Constitution, will lose its purpose in simple semantics.