The President of India has given his assent to the Government of National Capital Territory (Amendment) Bill, 2021 yesterday. The amended legislation establishes the primacy of the Lieutenant Governor (LG) over elected government led by Chief Minister Arvind Kejriwal in running Delhi’s administration. Now the bill has become a law and it is going to change the working of the Delhi Government drastically. According to the amended legislation, the “government” in Delhi means the “Lieutenant Governor” and the elected government will now be required to seek the approval of the LG before taking any decision/executive action. This is not good news for the people of Delhi who are demanding the status of full statehood for a long time. This law curtails the powers of the elected government and empowers the LG, an unelected functionary who is not accountable to the people of Delhi, without any popular support. This law goes against the basic principles of parliamentary democracy which are enshrined in our constitutional system. Many constitutional and political pundits have rightly criticized this legislation. In a democratic system, the LG has no business to run the administration when a popularly elected government remains in office. No power can be exercised without taking responsibility.
A few years ago, the people of Delhi had given a Himalayan verdict to the Kejriwal government, not to the LG of Delhi, but this amendment in the NCT Act frustrates such a popular mandate. It imposes several restrictions on the functioning of Delhi’s elected government and makes it mandatory to seek the approval of the Lieutenant Governor before making any decision. Needless to say, it would create huge problems for the Kejriwal government and will set a bad precedent in our parliamentary system. As mentioned earlier, now the Delhi Government means the ‘Lieutenant Governor of Delhi’ and all executive actions/decisions of Delhi’s elected government will need the approval of the Lieutenant Governor. Not only this, but the Chief Minister will have to send all files to the LG before taking every administrative decision or action. This development undermines the constitutional power and role of the Chief Minister of Delhi and empowers an unelected man unconstitutionally and in violation of the fundamental principles of parliamentary democracy. After this amended law, it is speculated that the LG would misuse his powers by delaying the approval or referring more matters to the President of India under Article 239AA (4) of the Constitution which will create more tensions between the LG and the Chief Minister. This is not good for Delhi’s constitutional health.
The Delhi Bill was passed by Parliament in great haste. It is difficult to understand the hasty legislative action of the central government. Many opposition parties had requested the central government to refer the bill to a select committee of Parliament but their suggestions were not entertained by the ruling central dispensation. What was the hurry that Parliament passed it on rocket-speed by ignoring the suggestions of opposition parties? It is a matter of fact that the amended law severely affects the autonomy of the elected government led by Chief Minister Arvind Kejriwal who was doing great work for the last few years. His work during the corona pandemic was highly appreciated by the people. It seems that some of his ambitious political rivals could not digest his popularity and curtailed his powers through this amended law.
The amended NCT legislation also goes against the 2018 judgment of the Supreme Court delivered in the NCT of Delhi v. Union of India that had upheld the primacy of the elected government over the LG in running Delhi’s administration in matters other than police, public order, and land. This judgment of the top court had brought big relief for the Kejriwal government. But the amended legislation violates this judgment that had asked the LG not to disturb the functioning of the elected government of Delhi. It wholly undermines the judicial efforts to strengthen the elected government of Delhi vis-à-vis the appointed LG of Delhi. “The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the aid and advice of Council of Ministers or he is bound to implement the decision taken by the President on a reference bring made by him” the Supreme Court had categorically observed in the 2018 Delhi case. The top court had also suggested the LG not to misuse his power of reference to the President in these words: “The power given to the Lieutenant Governor under the proviso to Article 239AA (4) contains the rule of exception and should not be treated as a general norm. The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism”.
Notably, the Delhi Government had stopped sending all files to the LG for his approval after the 2018 verdict of the Supreme Court and it had started taking decisions without the approval of the LG. This had also the effect of giving the Kejriwal government a free hand on important governance issues, enabling it to implement policy decisions quickly without any interference by the LG. In many areas, the Kejriwal government acted very well. Most probably, the Kejriwal government’s performance could have irritated the central government to cut the wings of the Delhi Government by making some amendments in the NCT Act so that the Kejriwal Government could not become more popular. The amendment in the NCT Act seems to be politically motivated, and it has sadly revived the power-sharing controversy again which is going to harm the people of Delhi. The new legislation makes Delhi Chief Minister Kejriwal a subordinate to Delhi’s LG, an unelected functionary, who acts on the instructions of his political masters without any political responsibility. Constitutionally, the LG is not the master or boss of the Chief Minister. He can act just like a guide and give his suggestions but cannot supervise the functioning of a popularly elected government that is collectively responsible to the Legislative Assembly, not to the LG. The LG has a different kind of role. He is a nominee of the central government. He cannot be allowed to dictate his terms to the Chief Minister of Delhi and his colleagues. Many constitutional and political pundits rightly believe that this law does not only restrict the powers of an elected government, but this is a big fraud with the people of Delhi who had chosen a government to serve them and the central government is deliberately creating hurdles in its functioning. Unfortunately, it is the people of Delhi who will suffer because of this political confrontation between the Modi government and the Delhi government. In addition to this, this legislation also violates the fundamental principles of our parliamentary democracy and federal structure which are parts of the basic structure of the Constitution. After the Kesavananda Bharati ruling of the Supreme Court, Parliament cannot violate these inviolable principles. A legal challenge needs to be instituted to protect parliamentary democracy from majoritarian assault.
It is submitted that the new legislation is a serious blow to our federal system and parliamentary democracy which are parts of the basic features of our Constitution. The central government has ignored the guidelines of the Supreme Court pronounced in the 2018 case. It has snatched the democratic power from an elected government and transferred it to an unelected authority that is not accountable to the people of Delhi at all. This is nothing but a clear case of exercising power without responsibility. Now the LG may delay the decisions of the elected government and the latter will have no option but to wait for the approval of the LG. Not only this, but the LG can also make more use of his referral power to the President of India. The new law subverts the basic spirit of our parliamentary democracy based on the federal structure and representative democracy based on popular support. It is an open and shut case of misuse of the parliamentary majority by a government that is determined to weaken the opposition at any rate. This is not a good development for our democracy and the constitutional courts should not hesitate to declare it unconstitutional as and when the aggrieved government knocks on its doors for relief. The Parliament is not above the Constitution. It is bound to exercise its law-making powers within the constitutional framework and well-settled norms.
The parliamentary majority cannot be a tool of harassment and exploitation of the opposition-ruled governments that do not fall in line with the ruling dispensation in the center. The Delhi legislation is ill-advised and dangerous for our parliamentary democracy.
The Delhi government had stopped sending all files to the L-G for his approval after the 2018 verdict of the Supreme Court and it had started taking decisions without the approval of the L-G. This had given the Kejriwal government a free hand on important governance issues, enabling it to implement policy decisions quickly without any interference by the L-G.