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The Fight For Hastinapur Again

Raisina Hills Is Polluted - Not Just Environmentally

Benjamin Franklin was asked whether they are a Republic or Monarch a republic if you can keep it, he replied. On 7th August 2023, the chamber of the Upper House of the Indian Parliament passed the Government of National Capital Territory of Delhi (Amendment) Bill 2023. 6 days later, The President gave her assent to a bill which undermines the elected office of Delhi's Chief Minister and effectively makes "Delhi Government" mean "Lieutenant Governor". The Home Minister said that this act would further enhance the smooth functioning of Delhi, but there seems to be no reasoning as to how these new changes will help the Delhi administration and its federal structure.

It is critical to point out here that BJP in the past has demanded a full state status and more autonomy for Delhi on multiple occasions going as far as bringing a constitutional amendment bill in Parliament back in 2003 but What has changed now? Well, the one that hasn't changed is Political differences and the habit of centralising power which we saw during the The Delhi Municipal Corporation (Amendment) Act, 2022 which centralised power from 3 MCDs to just 1. It puts Bhartiya Janta Party (BJP) on a difficult road to defend its past promises and current actions.

This Act makes the elected representative, i.e., the Chief Minister, powerless; let us understand how - This Act seeks to form the National Capital Civil Services Authority (NCCSA, which will comprise three members - The Chief Secretary, The Principal Home Secretary and The Chief Minister. NCCSA has held its first meeting, but the problem remains concerning this committee will make essential decisions on civil servants of Delhi through a vote.

The NCCSA doesn't require all three members to attend if the quorum of 2 members is complete; the committee can take decisions, potentially meaning decisions can be taken without consulting the Chief Minster. In case of a dispute, the Centre-appointed LG has sole discretion. Which precisely is the problem with this act. A popularly elected Chief Minister can be overruled by a centre' puppet.

The Cheer-haran of Aam Aadmi Party Government:
It is important to understand the background of this Act. Delhi is not just the seat of one of The World's most powerful Governments but also the centre of power tussle between the Union Government & the Delhi Government. Narendra Modi won two consecutive Lok Sabha elections - both with brute majority & more importantly, won all 7 Lok Sabha seats from Delhi, whereas Arvind Kejriwal also formed government in the capital for three consecutive times - twice winning over 90% of seats. Both the leaders have genuine public support.

Tussle between two popular governments is an inevitable course of nature. The tussle began in 2015, the year which saw a political back-set for the Prime Minister led Bhartiya Janta Party as they lost two states of great political significance - Bihar and Delhi.

However, on 21st May 2015, the Union Home Ministry issued a gazette notification transferring the powers concerning services of the Delhi Government to the centre-appointed Lieutenant Governor. The notification ensured that the Delhi Chief Minster's advice was not binding upon the Lieutenant Governor & the Lieutenant Governor had the right to act as per his discretion. Thus began the long-term battle between the two governments. The Delhi High Court in 2016 held that Lieutenant Governor is the administrative head of the National Capital Territory (NCT) & he is not bound by the advice of Delhi's council of ministers.

In 2017 The High Court order was challenged in The Supreme Court:
Setting the stage for a long battle. Supreme Court referred the matter to the constitution bench per appeal of the Delhi Government. The bench ruled that Lieutenant Governor is bound by the advice of the council of ministers & further referred the matter to a regular bench for specific issues arising out of the verdict under Article 239AA.

Article 239AA was inserted into the Constitution by the 69th Amendment Act in 1991 which conferred special status on Delhi, following the recommendations of the S Balakrishnan Committee. The provision grants Delhi an administrator and a Legislative Assembly, along with specific powers and limitations. It gives the legislative assembly power to make laws on all matters in List 2 of 239AA(3)(a) except entries 1,2 and 18 (public order, police and land). A regular bench, however, gave a split judgement.

2023 Judgement & the "O" word.
The matter was finally decided by a 5-judge constitution bench, in 2023 the Apex Court held that Delhi Government has legislative & executive powers over the administration & control of services except public order, police & land:
The Supreme Court held that the advice of council of ministers was binding upon the Lieutenant Governor. The basis of the Supreme Court Judgment was Article 239AA (3)(a) of the Constitution as discussed above, which states that the Delhi Legislative Assembly has powers over all matters in List II except the matters in Entries 1, 2 and 18 (public order, police and land) Since services are not exempted in Article 239AA(3)(a), the Delhi assembly has powers over it and consequently, the Delhi Government has executive powers on the subject. This decision was one of the first judgments in recent years which did not cater to the demands of Raisina Hills. The Hindustan Times called the judgement as a boost for democracy.

However, the brute majority Narendra Modi Government overturned the Supreme Court's decision by bringing an ordinance. The significance of Union Government overturning Supreme Court's decision cannot be understated. It is critical to note that Article 50 clearly lays out the principle of separation of power. Indian democracy works on the basis of Checks & balances, and when one of the organs undermines the other, it paves the way for a larger democratic threat.

In a landmark judgement of AK Roy vs Union of India, the Supreme Court held that an ordinance shall be brought when the council of ministers feels a sense of emergency. People from the government are yet to tell what the emergency was. This act, on the face of it, is a misuse of Article 123, which gives the Government extraordinary power to bring ordinances.

The government ignored the demand of various opposition parties to send the bill to a select committee for a clause-to-clause discussion. The habit of the current government not referring the bills to parliamentary committees is not new. According to PRS Legislative Research data, in the 16th Lok Sabha (during the first Modi regime), 25 per cent of the Bills introduced were referred to Committee, much lower than 71 per cent and 60 per cent in the 15th and the 14th Lok Sabha respectively. As per multiple news reports, no bills have been sent to a parliamentary select committee by the present Modi regime.

Road to dead-end
The Aam Aadmi Party won the re-election in 2020 with 63 seats in a 70 seats assembly. The people of Delhi gave a massive mandate to the Aam Aadmi Party, but this Act weakens Delhi's Chief Minister & his council of ministers. The Chief Minister of a 2cr population doesn't even have the power to transfer his secretary. This act makes an elected office a mere puppet in the hands of a nominated Lieutenant Governor.

The distant relationship between the Lieutenant Governor & the Chief Minister is not news to anyone. In 2018 the Chief Minister, along with his deputy Chief minister, spent a night at LG's office to request the LG to sign the papers pending for over a year with him. This relationship cannot be described as normal in any sense. There have been far too many instances of public disagreement between the LG and CM.

This act also undermines the mandate of the people and snatches away the rights of the Delhi Government, as granted by Article 239AA. It is important to understand the intent of Article 239AA on which the decision of the Supreme Court was based. The purpose of Article 239AA is to establish a framework that recognizes Delhi's special status as both the capital of India and a populous area with its own needs and aspirations.

It aspires to give Delhi's elected representatives more authority to pass laws affecting most aspects of citizens' daily life while still exerting some control over topics important to the country's administration and security. This article aimed to give Delhi some autonomy while upholding national objectives.

It is critical to note that section 5 of this act states that the advice of Lieutenant Governor shall be taken before council of ministers make any executive decisions which is directly violative of Article 239AA (4) which states that Lieutenant Governor shall work on the aid and advise of Council of Ministers of Acts like these weaken the principle of collective responsibility, which is essential for a federal structure. The principle of collective responsibility as described in the Stanford research paper, says that the permanent executive & temporary executive jointly are answerable to the legislatures.

Now let us try and understand Article 239AB which is specifically designed to act when there is a failure of constitutional machinery. It states that President on the receipt of report from the Lieutenant Governor or otherwise is satisfied that:
  1. that a Situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article;
  2. that for the proper administration of the National Capital Territory it is necessary or expedient to do so; Then the President's Rule can be imposed.
The Government of National Capital Territory of Delhi amendment (Act) is violative of Article 239AB because the administration of the National Capital Territory is not being run as per Article 239AA and situations like these call for imposition of Presidential rule according to article 239AB (3).

This act removes the permanent executives from any accountability and disrupt the principle on which governments across this country works. The Supreme Court in the State of Bengal vs Union of India emphasized that the federal structure of the Indian Constitution must be maintained. This also challenges the triple chain of authorities on which democracies around the world work.

The chain is simple the bureaucrats are answerable to the ministers, the ministers are accountable to the legislature, and the legislature is accountable to the people. The act creates problems for this chain and a deeper administrative headache for the Delhi government. The fact that only Lieutenant Governor can transfer bureaucrats will hamper the day-to-day functioning of the country's most powerful region. Moreover, the act ensures that the union government has the power to appoint Authority commissions and corporations.

Way Forward:
The power struggle between two popular governments have made the Delhi administration handicapped, and the victim of this power struggle are ultimately the people of Delhi. There is no escaping the fact that this Act will make the Delhi Government weaker, as noted by PRS legislative data.

There are serious questions on the intent of the Union Government and their habit of centralizing power which we saw during the demotion of Jammu & Kashmir from a full state to Union Territory, which is a clear violation of Article 3, which allows the parliament to re-organize existing states but bars the Parliament from demoting a state to a union territory.

There are questions about the intent of the Delhi Government, but there needs to be a mutual understanding between the two governments, and both need to understand that they must act within their jurisdiction. Former chief secretary Omesh Saigal, in office from 1998-2001, said:
"The press has coined a name for LG - 'Boss'. He is not the boss, nor is the CM. If they don't run together, they will fall - and this is what is happening for last three years," as quoted by The Indian Express. There can only be a way forward if the two governments realize that the people have elected them to work for the people. The pity fights arise from political differences.

There needs to be a mechanism where the Union Government ensures their oversight in the Union Territory without snatching away the rights of an elected government. How can it be done? well, some mutual respect would be good. The statements from both sides make it hard for any sanity to prevail. The federal structure is significant for a large and diverse country like ours. Federalism is a basic structure of our Constitution, as held by the Supreme Court in Kesavananda Bharati v. State of Kerala and reiterated in the SR. Bommai Judgement.

These cases highlight the importance of co-existence of governments and the way forward has to be the respect for Supreme Court Judgements, Constitution and mutual understanding between the two governments. The Delhi Government will again seek Supreme Court's intervention, and it will be interesting to see how the country's highest court reacts to an act questioned by many.

Concluding Remarks:
The country has a quasi-federal structure meaning an intermediate form of state between a unitary state and a federation. It combines the features of a federal government and a unitary government. While there is an acceptance of the fact that Delhi does not enjoy full state status in 2018, The Supreme Court held that Delhi has a unique federal identity, the Apex Court recognized the fact that Delhi cannot not be accorded a full state status, but the federal structure still remains strong in Delhi.

This Act attacks the very idea of federal structure in Delhi and also questions the judiciary's role in a democracy full of popular leaders where leaders with majorities can simply overturn the judgement of the land's highest court.

The problem starts when we don't question things around us, recall the 2019 Maharashtra Legislative Assembly elections when Shiv Sena left the NDA alliance to join hands with the UPA. What happened then? Amidst the deadlock the Union Government imposed Presidential Rule in the state. Later, the Prime Minister, using Rule 12 of Transaction of Business Rules, 2020 which gives Prime Minster special powers to take decisions on behalf of the Council of Ministers without calling the meeting of council, revoked the Presidential Rule and Devendra Fadnavis was sworn in as the Chief Minister of Maharashtra at 8 in the morning. The absolute wildness of this instance shows that the current regime doesn't really have any problem in playing around with the rules if it deems fit to their needs.

It is more important to note that even during this instance The Raj Bhawan did not object, Devandar Fradnevis did not object more so over The Rashtrapati Bhawan did not even extend its displeasure to the Prime Minister's Office. It shows that it is ignorant of us to assume that there is any sense of moral compass left in Indian politicians. As its famously said, "Apna kaam bnata bhad main jaye Janta".

Thus, it is more than necessary for citizens to voice their concern when they see constitutional provisions being attacked. It is on us to decide who we elect to protect defend and preserve the democratic and constitutional values of this country. Government of National Capital Territory (Amendment) Act is a start of a very dangerous game.

It is on the face of is Ultra Vires as it violates the provisions of Constitution and is also violative of basic features of Indian Constitution. As rightly pointed out by Indian Journal of Law and Legal research "The GNCTD (Amendment Act) is in violation of most of the tenets of the Basic Structure of the Constitution leaving just one which is "Secular Structure of the Constitution".

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