Governing Delhi has always been a challenge. Even during the late Sheila Dikshit’s regime, when both the state and Centre were ruled by the same party, there were immensely sensitive fences for the Chief Minister to walk upon and get her work done. The coming of Arvind Kejriwal and Narendra Modi in the same city was a head-on collision and neither the city nor its institutions have since then ever rested in peace. Eventually, this turmoil has put most public services in disorder even as Delhi prepared against a pandemic of the deadliest kind. Finally, a few were vigilant enough to witness the witch on the broomstick flying over the majestic capital city sucking away its most potential and essential powers to govern. This piece attempts to analyse a recent amendment act for changing the nature of governance in the National Capital Territory of Delhi.
The last Parliament session ended in the midst of stormy election rallies which overshadowed the quick passage of a highly contestable ‘The Government of National Capital Territory of Delhi (Amendment) Act 2021’. This Act, while violative of many Constitutional norms, provisions and principles, also restrained the democratic stature of the Delhi Government vis a vis the Lieutenant Governor (LG). For a government which was already wading through the slippery channels of identity battles due to the lack of any control over the investigations of the Delhi riots and Covid-19 management, this Amendment Act closed the door on its face. As per the Parliament’s notification, the Act came into force on 27 April 2021. The ‘Government’ of Delhi now onwards means the ‘Lieutenant Governor’ and not the elected representatives forming the Council of Ministers in the Delhi Assembly. With this, the sacrosanctity of the country’s democratic structure has taken a nosedive as a constitutional offence has surreptitiously legitimized itself in the midst of a pandemic clawing at the city.
The Act overshoots many constitutionally prescribed responsibilities while superseding the Hon’ble Supreme Court’s judgement of 2018, divests Delhi of its special status as provided under the Constitution’s 69th Amendment Act, 1991 and violates Article 239AA of the Constitution. Sloshed by an absolute majority and prompted by AAP’s independent position on police functioning in the Delhi riots or farmers’ agitation, the Centre found an urgent need for heaving Delhi’s voice notwithstanding the constitutionality of governance, a bare fact which is likely to invite stringent judicial scrutiny.
Some special provisions were made with respect to Delhi by inserting Article 239AA in the Constitution through the 69th Amendment Act, 1991, wherein the Union Territory of Delhi became the National Capital Territory of Delhi (NCTD). It created an elected State Assembly with powers more or less of a full-fledged State Assembly on a scale higher than the LG of a Union Territory. Article 239AA says, ‘….legislative Assembly shall have power to make laws for the whole or any part of the NCT with respect to any of the matters enumerated in the State list or in the Concurrent list in so as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that list insofar as they relate to the said Entries 1, 2 and 18.’ (Entries 1, 2 and 18 relate to public order, police and land). This embedded ambiguity which establishes a full-fledged elected State Assembly but transfers its key governing pillars to an administrator called the ‘Lieutenant Governor’ had been a legal trickery to work well as long as the Centre and the NCTD were ruled by the same political party but not otherwise. This cunning of law retained an illusion of a State as long as Sheila Dixit and the Manmohan Singh government worked in loyal partnership and congeniality for a common purpose. The situation changed when the coming of AAP, a party of newcomers in politics, raised the expectations of people without having powers to deliver. The situation worsened as energetic ground workers of AAP found themselves sandwiched between the electorate and the LG acting on behalf of the Centre which nurtured an entirely different agenda. Therefore, when the matter reached the Supreme Court in 2017, the learned Constitutional bench remarked that the ‘said maze is to be cleared first’.
The Supreme Court unequivocally resolved this maze in the Govt. of NCT of Delhi vs Union of India on 4 July 2018, saying that ‘the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of a Lieutenant Governor’ and further clarified that ‘Art. 239AA does not indicate that the executive decisions of GNCTD have to be taken with the concurrence of LG’. The Court invoked a purposive interpretation to these provisions to say that these do not reflect that the concurrence of the LG is required and Article 239AA cannot be given any other interpretation relying upon the principle of parliamentary democracy, constitutional morality and responsibilities of constitutional functionaries towards the basic tenets of the Constitution.
In this background, the Amendment as explained violates the basic tenets of the Constitution as given in the Kesavananda Bharati case of 1973, in turning a representative government into a unitary government by defying the democratic and federal tenet vesting powers in people’s representatives and enabling these representatives to function. This Amendment Act, while amending the 1991 Act, has violated the principles of constitutional morality, objectivity and constitutional governance as established in a long line of cases scrutinized by the learned bench while delivering the 2018 judgement. The Centre has brought such a flagrant amendment without subsequently amending Article 239AA, in the absence of which such an Amendment Act could be a denunciation of constitutional principles underlying governance.
It is in the interest of the people of India that governments not use the legislative route to settle ideological vengeance and berate India’s strong democratic constitution.
The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.
The Act overshoots many constitutionally prescribed responsibilities while superseding the Supreme Court’s judgement of 2018, divests Delhi of its special status as provided under the Constitution’s 69th Amendment Act, 1991, and violates Article 239AA of the Constitution.