What appears to be an innocuous Bill, in fact, seeks to introduce a complete change in the way the National Capital Territory (NCT) of Delhi is administered. The Bill introduced in parliament conceals more than it reveals, since it contains no substantive reference to the purpose of the Bill. Indeed, this Bill — in its Statement of Objects and Reasons — turns the issue on its head and undermines not only the 2018 judgment of the Supreme Court of India, but also certain provisions of the Constitution of India itself. In particular, Article 239AA.
The Statement of Objects says that the Bill is intended to give effect to the judgment of the Supreme Court. But in fact, it does the very opposite.
Paragraph 3 of the Statement of Objectives and Reasons is as follows:
“In order to give effect to the interpretation made by Hon’ble Supreme Court in the aforesaid judgments, a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression “Government”, which in the context of legislations to be passed by the Legislative Assembly of Delhi, shall mean the Lieutenant Governor of the National Capital Territory of Delhi, consistent with the status of Delhi as a Union territory to address the ambiguities in the interpretation of the legislative provisions. It further seeks to ensure that the Lieutenant Governor is necessarily granted an opportunity to exercise the power entrusted to him under proviso to clause (4) of article 239AA of the Constitution, in select category of cases and also to make rules in matters which incidentally encroach upon matters falling outside the preview of the Legislative Assembly. It also seeks to provide for rules made by the Legislative Assembly of Delhi to be consistent with the rules of the House of the People.”
Surprisingly, the word ‘government’ is nowhere defined in our various statutes. However, what this Bill seeks to do is very clearly go against our established notions of what is a ‘government’.
We are accustomed to believing that the government consists of the Executive, appointed from amongst our elected representatives in the Legislative assembly, and that it commands the confidence of the majority of the house. This Bill, in Section 2 (3), states that the “expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.”
The Lieutenant Governor of the National Capital Territory of Delhi is not elected, but is instead nominated in a purely political process by the President of India, acting on the aid and advice of the Union Cabinet of Ministers. He is therefore, a purely political appointee.
Republicanism & Federalism Destroyed
The National Capital Territory of Delhi enjoys a special status in the federal scheme of our nation. It is the Capital of India, but it also has an elected legislative assembly for which all the registered voters in Delhi vote. The Aam Aadmi Party (AAP) swept the polls in 2020, and went on to form the Government of Delhi. That alone can be defined to be the ‘government’ of Delhi.
Article 239AA of the Constitution of India situates the governance structure of Delhi within the four corners of the Constitution itself, making Delhi a part of the federal unit of the country with an elected government of its own.
The Constitution, in the Seventh Schedule, distributes law-making powers between the states and the union, and has a Concurrent List, where both the states and union can make laws. Executive powers follow legislative powers.
In other words, in every matter in which the Government of Delhi has the power to make laws, it also has the Executive power to execute these laws.
First published in The Quint.
