NCT of Delhi: Sultanate of Central Government

In 2014, after BJP came to power in Centre winning all seven seats in Lok Sabha from Delhi, they thought NCT also will come under their rule. But to their great surprise, Aam Aadmi Party swept the elections and BJP was almost wiped out, except for three seats out of 70. All other political parties lost their electoral existence.

With huge majority, Arvind Kejriwal was not allowed to rule Delhi, all kinds of problems were created for him. Every major decision was litigated. Bureaucrats were pressurised, defections were engineered, central power was misused and abused, then LG was made an instrument of obstruction or oppression of democratically elected Chief Minister and his cabinet. Centre harassed small and big officers who actively associated with the Delhi Administration under Kejriwal.

Court cases, disciplinary proceedings, sudden withdrawal of deputation orders, recall orders etc were unleashed to weaken the administration. When CM appointed some parliamentary secretaries from out of MLAs, Centre used 'office of profit' issue by misinterpretation and tried to create political crisis in AAP legislature party. AAP survived all these tricks and political atrocities and still won the hearts of the people with their sincere efforts on education and medical reforms. Their policies towards middle income groups, small and medium businessmen were quite popular. As last resort even communal riots were also engineered to disturb and destabilize the peace and governance in Delhi.

When AAP was seeking re-election, former IPS officer Kiran Bedi was brought into the fierce battle as the contending CM candidate and dozens of Central ministers concentrated to use all the powers to unseat AAP but miserably failed. Because of the litigation involved by the central government, the AAP administration was stranded and troubled for years and in spite of two emphatic judgments of Supreme Court on powers of Delhi Government and those of LG, no smooth administration was allowed.

Defeated Bedi was sent as an Administrator to Pondicherry where a democratically elected government was harassed all through and finally the CM and the Government was pulled down with engineered defections just before recent elections. Now BJP is happy because the Government they wanted has been elected by hook or crook. Even Bedi could not stand the political strategies on Pondicherry and had to resign and go.

With electorate supporting the AAP Government in Delhi and Supreme Court's clear warning that the democratically elected government have more powers than the LG, the Centre resorted to Amendment to the Constitution to give more powers to the LG against the original scheme of Constitution for Union Territory of Delhi and democratic norms. New Bill says Government means LG. By nomenclature it is true. Governor is the head of State and President is head of nation.

It does not mean they will have final powers in decision making. They have to depend upon the aid and advice of elected Chief Minister and his council of Ministers. They are titular heads. But this Bill makes LG the real ruler and the elected cabinet is reduced into dummy. BJP at centre was sparring with National Capital's AAP Government since 2015 before the Delhi HC and Supreme Court. Special status was given to Delhi through Article 239AA which was inserted by 69th Amendment in 1991. LG is the administrative head of NCT Delhi and Assembly is created for representative governance in tune with parliamentary democracy.

A bill that kills democracy in Delhi

A clever language is incorporated in the Bill to empower the LG to reserve any bill for President, which was confined earlier to only three categories. By Section 33 the Legislative Assembly is barred from making any rule to consider day to day administration or conduct inquiries into administrative decisions, which means that Legislative Assembly and Government cannot function at all. It cannot conduct inquiries. Supreme Court in 2018 held that LG has to act on aid and advice of the council of ministers on all matters except land, public order and police. In all other subjects, the SC held that Delhi Government will have complete executive powers. In another judgment SC in 2019 said that the power to appoint a Special public prosecutor will lie with NCT government, and Centre will have executive authority over ACB and powers to set up commissions of inquiry. Issue of who controls civil services is still pending inquiry before SC.

Section 6 of Article 239AA states that the Council of Ministers "shall be collectively responsible to the Legislative Assembly". But this amendment violates Article 239AA(6). It is a "complete subterfuge" of that Article and democratic scheme of administration of UTs as per the Constitution.

When Kejriwal government has initiated inquiry into communal riots, the Centre opposed it as unconstitutional and stood by 'Facebook' challenging the inquiry itself. Constitutional expert Gautam Bhatia said that this provision is "specifically designed to nix the ongoing inquiry by the Delhi assembly into the 2020 riots".The Delhi Legislative Assembly has earlier constituted a nine-member 'Peace and Harmony Committee' in March last year to conduct an inquiry into the riots as well as consider the factors which could potentially disrupt communal harmony in Delhi. This Committee had summoned the Facebook India Vice President Ajit Mohan in September last year. The central government as well as Facebook had told the Supreme Court that the committee itself was unconstitutional.

Power to reserve any matter

The SC in its 2018 judgment, had clarified that the power under the proviso to Article 239AA(4) can only be exercised in exceptional circumstances."The lieutenant governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President," the bench added.

Earlier Governor had power to reserve decisions on only a few prescribed matters for consideration of President. The proviso in the Bill allows the L-G to reserve "any matter" for consideration of the President where the former has a difference of opinion with the council of ministers.

Consent of LG

The Supreme Court held that the decisions of the council of ministers had to be communicated to the L-G but the latter's concurrence was not required. But the new Bill makes it mandatory to get the L-G's opinion in terms of the proviso to Article 239AA(4) on certain matters, before taking any executive action under any law in force in the national capital. The lieutenant governor himself is required to issue a special or general order on what these matters would be. This means the Chief Minister or his cabinet has to take LG's opinion before taking any decision. The LG will decide on what matters he has to be consulted.

Senior Advocate of Supreme Court Rajeev Dhavan analysed that "the L-G only has the right to be informed after the decision is taken. If he disagrees with it, he can go up to the President." He further commented: "The very democratic basis of the earlier judgment is being sought to be reversed by making the L-G now a person who will preview everything…This is just trying to inhibit the Delhi government, rendering it as relevant as it was before the (Supreme Court) judgment".

The bill has an effect contrary to the text and scheme of Article 239AA of the Constitution as well as the Constitution (five-judge) bench judgment of 4 July and the division bench judgment of 14 February, opined another senior lawyer Shadan Farasat. The statement of objects and reasons says that this is in pursuance of those orders, in fact the Bill does the opposite of what those judgments say. Advocate says: "If here it means L-G acting on the aid and advice of the Council of Ministers, then there's no problem. That's the present position. But if the attempt is to say L-G acting on his own discretion, then it is clearly unconstitutional."

This provision disallows the Legislative Assembly from considering matter related to the day-to-day administration of Delhi. If this is the law, what the legislature and the executive elected from legislature was expected to do? What will happen toaccountability of the council of ministersand the executive should be answerable and accountable to the legislature? Where the LG would be answerable to Assembly? How can an elected government serve only as a subordinate performing clerical duties to the nominated head who is supposed to be nominal head? Farasat said that it was better to wind up the statehood.

(The writer is Professor of Law, Bennett University and former Central Information Commissioner)