This article is authored by Pragun Goyal, a first year student of NLU Delhi.
Jean Louis De Lomé’s aphorism that “Parliament can do everything but make a man a woman, a woman a man” seems to be in the air considering the Centre’s Delhi Amendment Bill. This Bill contains amendments that will enhance the powers of the lieutenant governor (‘LG’) of Delhi and further hobble the elected government and emasculate the assembly.[i] But the government’s stance is that it aims to "further define the responsibilities of the elected government and Lieutenant Governor (LG) in Delhi". The Bill seems to carry a nimbus of authoritarianism thereby frazzling the settled constitutional issues in Govt. of NCT of Delhi vs Union of India. (‘2018 verdict’). The Supreme Court of India (‘SC’) stated in Raja Ram Pal vs Lok Sabha, that constitution is the supreme lex in this country with parliament subordinate to constitutional scheme. The Bill has a tinge of antagonism to the Indian ethos of constitutional supremacy as it makes the elected government infructuous by changing the meaning of the term ‘government’ and not defining responsibilities in line with the constitutional scheme of governance of national capital, as interpreted by the SC.
‘Sui generis’ case of Delhi
The distinctive case of Delhi with its own legislature is due to the 69th Amendment, which introduced articles 239AA and 239BB as a chaperone to article 239. These articles provided for an assembly, fully elected, and a council of ministers responsible to the assembly in Delhi.[ii] The Supreme Court of India delineated its bourn in GNCTD Vs. Union of India in following words:
“The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic set up and representative from of government wherein the majority has a right to embody their opinions in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the constitution.”
It also brought out a provision, borrowed from the Government of Union Territories Act, 1963, that LG has the power to refer matters, on which the council of ministers and LG are poles apart, to the President. This particular provision has proved to be a legal knot with all asperities ensuing from it including the current one.
Core of the issue
The moot issue is that the proposed bill seeks to nullify and override the 2018 judgment of the SC. Justice AM Khanwilkar in Union of India & Ors. Vs Exide Industries Limited said, “ legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment”. The court in People’s Union of Civil Liberties vs Union of India has held:
“The legislature cannot overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the legislature cannot trench on the judicial power vested in the Courts. Relying on this principle, it is contended that the decision of apex Constitutional Court cannot be set at naught in the manner in which it has been done by the impugned legislation.”
What Bill proposes?
The Bill mandates that LG has power to reserve for consideration any bill, and any of the matters outside the purview of the powers conferred on the legislative assembly. It overrides the verdict delivered by CJ Dipak Misra in 2018 that LG should not act in a mechanical manner without due application of mind so as to refer every decision to President. LG should exhaust the process of dialogue and discussion as mandated by Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 before making reference to President.
Another provision is that the Delhi assembly shall not make rules to enable itself or its committees to consider matters of day-to-day administration. It inherently contravenes the spirit of representative democracy as each assembly has the right to scrutinise the executive to manage affairs. Moreover, it dilutes the accountability of the executive to the legislature, thus violating the constitution. In Ram Jawaya Kapur vs State of Punjab, the court stated that the executive has to act subject to control of legislature and the real executive powers are vested in Council of Ministers.
The bill further mandates that before taking any executive action, opinion of the LG shall be obtained which ultimately undermines the verdict of people and constitutional morality. Governor/LG is a nominated person with no will and consent of the governed. The court in Manoj Narula vs Union of India, held that democratic values survive and become successful where the people at large and the persons in charge of institutions are guided by constitutional parameters. It nullifies the scope of article 239AA which says that Delhi legislature can make laws on any matters on state and concurrent list except for issues relating to public order, police and land.
Over and above this, the bill adduces that the term ‘Government’ in any law by the legislative assembly will mean ‘Lieutenant Governor’. This incongruous provision clotheslines the quiddity of democracy. The SC in 2018 verdict explicitly mentioned that Lieutenant Governor does not have any independent decision-making power. Either he has to act on the aid and advice of council of ministers or he is bound to implement decision of President on reference under article 239AA (4). Moreover, Lieutenant Governor is not an elected member of the legislature and is therefore devoid of people’s will and authority.
The bill has an air of turning representative democracy into an authoritarianism with control vested in one person. It seeks to dismantle the federal structure of our democracy and the will of the people. In GVK Industries Ltd. Vs ITO, the Supreme Court of India stated that:
“Whatever else may be the merits or demerits of the Hobbesian notion of absolute sovereignty, even the Leviathan, within the scope of Hobbesian logic itself, sooner rather than later, has to realize that the legitimacy of his or her powers, and its actual continuance, is premised on such powers only being used for the welfare of the people. No organ of the Indian State can be the repository of the collective powers of the people of India, unless that power is being used exclusively for the welfare of India”.
The bill is reminiscent of the Government of India Act 1935, under which extensive powers were bestowed upon the Governor General of India and was protested extensively by our forefathers. It would apt to reiterate Nehru’s words for the proposed amendments to Government of National Capital Territory of Delhi Act 1991 that it is a machine with strong brakes but with no engine. The bill is in complete contrast to the words of Justice DY Chandrachud that working of democracy depends upon role of institutions and statesmanship of elected representatives and those who take their decision and their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue.
The government in the objects and reasons of the bill states that the need for the bill is to enhance structural mechanism for effective time bound implementation under section 44 of 1991 Act. But the theme of the Bill reveals several lacunae and expected strains in cooperative federalism and democracy. Indian democracy rests on the pillar of federalism and consent of the governed. For Béteille, “democracy emerged in India out of a confrontation with a power imposed from outside rather than an engagement with the contradictions inherent in Indian society”. This provides Indian democracy with a character, contends Béteille, that is unique to India and not experienced in the West.[iii] The Bill fractures the ideology of renaissance of constitution, impedes the inculcation of constitutional morality and is reminiscent of Jean Louis De Lomé’s adage.
[i] Achary P, 'Centre's Delhi Amendment Bill Is At Odds With Supreme Court's Ruling And The Constitution' (The Wire, 2021) <https://thewire.in/law/delhi-amendment-bill-centre-lieutenant-governor-supreme-court> accessed 22 March 2021 [ii] Ibid. [iii] Béteille A, Democracy And Its Institutions (Oxford University Press, Delhi 2012)