In a rebuff to Delhi Chief Minister Arvind Kejriwal, the Union law and justice ministry Wednesday told Delhi Lieutenant-Governor Najeeb Jung that the controversial Delhi Janlokpal Bill, 2014 is a financial Bill and and it is “mandatory” for the government to get his approval before it is introduced in the Assembly.
The ministry also said that Rules 55 and 56 of the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1991 are constitutional. The opinion was sent to the Union home ministry by Law Secretary P K Malhotra.
Jung had written to Law Minister Kapil Sibal on Monday, seeking his ministry’s advice on whether his approval was required before introducing the Bill in the Assembly and also whether Rules 55 and 56 of the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1991 are constitutionally valid.
“In respect of the first issue, it may be mentioned that the enactment of the Delhi Janlokpal Bill involves the creation of a Janlokpal and establishment of new infrastructure and facilities, which will involve expenditure and result in appropriation of money out of the Consolidated Fund of the Capital,” the ministry said.
“As per the provisions incorporated in Section 22 (of the Government of National Capital Territory of Delhi Act, 1991), the Delhi Janlokpal Bill is a financial Bill and it is mandatory that such a Bill shall not be introduced in the legislative Assembly except on the recommendations of the Lieutenant-Governor.
“Further, as the Lokpal and Lokayukta Act, 2013 on the same subject has already been enacted by the Parliament, the placing of the said Bill before the L-G will ensure that the law prevails in the state, when the same after passing by the Assembly is reserved for consideration of the President and receives his assent as provided under Article 239AA(3)(c).”
Referring to the L-G’s second query, the opinion points out that Rules 55 and 56 were framed by the MHA and have been in existence without being challenged.
“It is now well settled that unless a law or rules made thereunder have been challenged before a court and have been held to be unconstitutional, there is a presumption in favour of the constitutionality of the legislation…we are inclined to agree with the views of the referring ministry that the rules do not appear to be unconstitutional or ultra vires the Act of 1991,” it said.
Rule 55 (I) of the Transaction of Business of the Government of NCT of Delhi Rules, 1991, makes it mandatory for the L-G to refer to the Central government “every legislative proposal”, which, if introduced in a Bill form and enacted by the legislative Assembly, is required to be reserved for the consideration of the President.
Such Bills include those that would attract the provisions of sub-clause (c) of clause 3 of Article 239 AA – this comes into play if a law passed by Delhi Assembly is in conflict with a similar law made by Parliament, in which case the Delhi law would be void to the “extent of repugnancy”.
The L-G is also bound to refer legislations that attract provisions of Articles 286 (restrictions on imposing tax on sale/purchase of goods outside the state), 287 (Bar on states to levy taxes on electricity consumed/purchased by Centre or the Railways) and 288 (Exemption from taxation by States in respect of water or electricity in certain cases).
But it is sub-clause (c) of clause 1 of Rule 55, which is at the heart of the ongoing controversy as it refers to the duty of the L-G to refer to the Centre any legislation that relates to any matter which, among other things, could ultimately necessitate additional financial assistance from the Centre through substantive expenditure from the Consolidated Fund of the Capital.
Meanwhile, it has also come to light that three key departments of the Delhi government had “highlighted the fact” that the Janlokpal Bill needed the approval of the L-G before being introduced in the Assembly.
Jung referred to the views of the three departments in his letter to Sibal, copies of which were also sent to Home Minister Sushil Kumar Shinde and Home Secretary Anil Goswami, seeking legal opinion on the controversial Bill.
“The views expressed above (by the SG) have been reiterated by the finance, law and administrative reforms departments of the Delhi government, who have highlighted the fact that the prior recommendation of the L-G is required since the Bill involves expenditure from the Consolidated Fund of the Cabinet,” he said referring to Solicitor General Mohan Parasaran’s opinion that the L-G needed to approve the Bill before introduction.
“The council of ministers of the government of NCT of Delhi did not accept these comments,” the L-G’s letter said