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A battle for supremacy

Supreme Court must play referee in Centre-Delhi government tussle

Written by P. D. T. Achary |
Updated: July 11, 2016 12:54:20 am
delhi NCT act, arvind kejriwal, kejriwal AAP, AAP centre, centre vs aap, aap vs centre, aap bills, kejriwal bills, delhi news, what is NCT act, india nct act Supreme Court of India

The political slugfest between the Union government and the government in Delhi which has been going on ever since the Kejriwal government came to power with an unprecedented majority has entered a crucial stage. The president has rejected the disqualification removal bill and now the Union home ministry has reportedly sent back 14 bills on the alleged ground that no prior sanction of the Central government was obtained before introducing them in the assembly. Never before has Delhi witnessed such a no-holds-barred confrontation between the local government and the Union government.

At the core of this confrontation is the jurisdictional conflict involving the two governments. It seems that the Constitution (69th Amendment Act) of 1991 which created the present constitutional set-up of Delhi did not settle jurisdictional issues. In fact, the Government of NCT of Delhi Act of 1991 which was enacted by Parliament in pursuance of the new Article 239 AA (7) has sown the seeds of conflict of jurisdictions.

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Neither the Constitution nor the NCT Act provides for any prior sanction of the Central government for introducing any bill in the Delhi assembly. It is the transaction of business rules (Rule 55) which make such a provision. But even under these rules the prior sanction is required only in cases where, one, a bill when passed will have to be reserved for the consideration of the president under Article 239 AAA (3); two, it deals with imposition of tax on the sale or purchase of goods outside the state; three, it seeks to impose tax on electricity consumed by the government of India, the railways etc; four, it seeks to impose tax on water or electricity stored or distributed by an authority established by a parliamentary law; five, the taxes proposed on inter-state trade or commerce are discriminatory; and, six, it contains proposals which involve additional financial assistance from the Centre, substantial expenditure from the consolidated fund of the capital.

Transaction of business rules are made by the president under Section 44 of the NCT Act. These are made to allocate business to the ministers in respect of matters on which the LG is required to act on the advice of the council of ministers; to deal with the difference of opinion between the LG and the ministers. The requirement of prior sanction of the Central government for introducing a bill in the assembly is not a part of Section 44 of the Act. It is clearly an extraneous matter. A rule cannot make any provision for a matter which is not a part of the parent act. There is an urgent need to revisit this rule. If the Union government wanted the Delhi government to take prior sanction before introducing a bill it should have been provided for in Article 239 AA or at least the NCT Act. Only the money bills need prior sanction but it is of the LG and not of the Central government.

When the new constitutional set-up was created for Delhi in 1991, the Union government was anxious to retain control. Delhi is in the category of a UT and the president has been given the responsibility to administer it. But Parliament has, by enacting 239 AA, transferred a great deal of legislative and executive powers to the assembly and the council of ministers. So except on public order, police and land, the LG can act only on the advice of the council of ministers. At the same time, the constitutional provisions providing for the overriding effect of laws made by Parliament over the Delhi laws, for the taking over of Delhi administration by the president on the ground that such a step is necessary for the proper administration of the state and for the reference to the president any dispute that may arise between the LG and ministers, take care of the issue of control over the Delhi government by the Union. The constitution does not envisage any other type of control on the Delhi government.

But Section 49 of the NCT Act which provides for presidential directions on any matter at any time disturbs the delicate constitutional balance established by enacting Article 239 AA. This provision gives untrammelled powers to the Union government to make a government in Delhi virtually non-functional. The NCT Act is supplemental, incidental and consequential to the provisions contained in Article 239 AA. So no provision in the act should be such as would negate the scheme contained in this Article. Now that the Supreme Court proposes to hear the issue of jurisdictional conflicts, Section 49 of the NCT Act and the transaction of business rules, it is hoped, will attract the court’s attention.

The writer is former secretary general, Lok Sabha

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