The Parliament in its Budget Session on Monday passed the National Capital Territory of Delhi (Amendment) Bill, 2021 which gives overreaching powers to the Lieutenant Governor over the elected cabinet which governs the national capital.
According to the amendments of the new bill, in Section 21—which deals with restrictions on laws passed by legislative assembly with respect to certain matters—the expression "government" referred anywhere in any law to be made by the legislative assembly shall mean the 'Lieutenant Governor'. Thus, as per the new bill, the government in Delhi does not mean the elected government—in this case, the government led by the Aam Aadmi Party (AAP)—but it will mean the LG which is appointed by the Centre.
This bill effectively reverses the Supreme Court's July 2018 verdict which had defined the LG's role by giving the Centre a backdoor entry to legislate in Delhi's administrative affairs. The amended bill also re-ignites the ongoing six-year-old turf war between the AAP-led state and the BJP-led Centre.
What are the provisions of the new bill?
The Bharatiya Janata Party-led Centre had introduced the Bill on March 15 which sought to define the role of Delhi's LG and give a proper "interpretation" to the Supreme Court's July 2018. A five-judge Constitution Bench on July 4, 2018, had unanimously defined the LG's role and ruled that he could not "interfere in every decision of the elected government".
This essentially gave teeth to former LG Najeeb Jung's statement made in 2015 that "Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution".
The Bill further clarified that LG's opinion would be taken before the state government took any executive action based on Cabinet decisions or any individual minister.
During the discussion in the House on this bill, BJP MP Meenakshi Lekhi—she represents Delhi in the Lok Sabha—said the bill sought to rectify the alleged mismanagement by the incumbent and previous governments.
Why did the conflict arise?
In 1991, Delhi was declared as a Union territory with a Legislative Assembly. The Lok Sabha at the time passed the 69th Amendment introducing Articles 239AA and 239BB—granting special status to Delhi—in the Constitution.
This means that Delhi has a legislative assembly—elected by the citizens of Delhi—with the LG—appointed by the President—as its administrative head.
A turf war broke out when AAP, led by chief minister Arvind Kejriwal, was voted into power for the second time in 2015. The Centre—governed by the BJP—was at odds with policy decisions taken by Delhi. Additionally, issues continued to rise because the LG's office—led by the Centre—controls land, public order and the Delhi Police.
In its plea before the supreme court, AAP's submitted that an elected government could not exist without any real power. It argued that the constitution could not give the LG power to simply "stultify daily governance by sitting over files".
What did the Supreme Court say?
The matter came to a head and reached the Supreme Court. In July 2018, a five-judge Constitution Bench said "there is no no room for absolutism and no room for anarchy". It interpreted Article 239AA to say the LG was bound by the aid and advice of the council of ministers except on issues relating to police, land and public order.
"The lieutenant governor must work harmoniously work with an elected government. The LG is the administrative head but he can't act as an obstructionist," the then Chief Justice of India Dipak Misra had said.
The top court's order had come on a batch of pleas challenging the Delhi High Court's August 2016 order which said LG was the boss of Delhi.
"Legally speaking, the Parliament has the prerogative to amend laws—despite supreme court rulings stating otherwise, former Supreme Court judge AK Sikri told BOOM. The amended bill reverses the 2018 Supreme Court judgment, he said.
"In a case like this, where Delhi has been given limited statehood, the Supreme Court interpreted the Constitution in a particular way after much deliberation. This particular interpretation was primarily keeping in view the Centre-State relationship in a federal structure," Justice Sikri said.
Justice Sikri was part of the Constitution Bench which gave the verdict on the AAP versus LG turf war. "Even in a limited state where elections have taken place, the elected representatives are in power. The Supreme Court had interpreted that the council of minister play an important role. Even Governors (a constitutional authority appointed by the President) go by the aid and advice of these elected representatives," he added. In this case, the Centre should have respected the power of the elected representatives rather than undoing it, more so, when the provisions were interpreted by the Constitution Bench keeping in mind the constitutional spirit of a federal structure coupled with the special provisions with respect to Delhi enshrined in Article 239AA of the constitution," he further added.
The bill has basically undone the principles laid down in the Constitution bench judgment, senior advocate Rahul Mehra told BOOM. Mehra, the standing counsel for Delhi, added that what it couldn't achieve directly (in the Supreme Court challenge), the Centre did it through the amendment. The Constitution Bench had clearly said that LG's concurrence was not required once the cabinet had taken a decision. The aid and advise of the council of ministers was binding and the LG could have a difference of opinion only in the rarest of the rare case," Mehra said reacting to the development.
"The amended bill now gives overarching powers back to the LG. Therefore this is an absolute overreach by the Centre. It is unconstitutional and goes against the basic tenets of the democracy," Mehra added.
"By way of this bill, an elected government of the day has been asked to be subservient to an appointed authority. If this issue were to go before any independent forum, it would not stand the test of legality," he also added.