Updated: March 25, 2021 8:58:40 am
On the face of it, the amendment to the National Capital Territory Act 1991 was introduced in Parliament to give effect to a July 2018 judgement of a 5-judge constitutional bench. While purporting to do so, the Bill has, in fact, planted several curbs on the functioning of the legislative assembly of Delhi as well as its council of ministers. The Supreme Court, without striking one single note of dissent or dissonance in a 536-page order, clause by clause, had clarified the difference between the constitutional arrangement designed for Delhi and that available for any other Union Territory.
It had dwelt in detail with each aspect of the 69th Constitutional Amendment passed in 1991 through which Article 239 AA was added to the Constitution. The amendment envisioned a representative form of government for the NCT of Delhi which until then was just known as Delhi administration, with officers reporting directly to the lieutenant governor (LG). There were no ministers and scant public interface.
It was only after the 1991 constitutional amendment was passed that Parliament enacted the NCT of Delhi Act 1991 based on the constitutional mandate. It is to Clause 2 of Article 239 AA that the Supreme Court accords overriding primacy. Because it is there that the Constitution refers to an obligation (the word is shall) to establish a legislative assembly, with elected representatives on par with the legislatures of states. This is dissimilar to Article 239 B of the Constitution where Parliament has the discretion whether or not to create a legislature. The constitutional amendment also provided for Delhi’s legislative assembly to have the power to pass legislation on all subjects on the State and Concurrent lists of the Constitution, except for three — police, public order and land.
These three subjects remained under the Centre, to be administered by the LG of Delhi, and barring a case of difference of opinion arising between the LG and the council of ministers, the Constitution enjoined the LG to act on the “aid and advice” of the ministers. It went on to say that the “LG has not been entrusted with any independent decision-making power. He has to either act on the aid and advice or is bound to act on the order of the President if a matter is referred to him” (by LG). And that, observed the Supreme Court, should be the exception not the rule. The principle of collaborative federalism and constitutional balance must be exercised with “profound sagacity and judiciousness,” it added.
Leaving aside the Constitution and the Supreme Court, let us consider the ground realities based on first-hand knowledge of working in the erstwhile Delhi administration and later the Government of NCT (GNCT) of Delhi. In these times of intense polarisation, one cannot but marvel at the enormous reforms so successfully legislated and executed in the past.
Some landmarks which are remembered and enjoyed by the citizens include the privatisation of power by unbundling the Delhi Vidyut Board, the flagging off of Delhi Metro — the latter has remained a lasting partnership between the central and Delhi governments — the conversion of the largest fleet of public transport in the world to CNG, all of which happened in 2002. The unit area method of property tax collection was brought in by amending the Municipal Corporation Act 1956, giving enormous relief to harassed house owners. The Delhi Cooperative Societies Act 2003 brought fresh air into the murky functioning of cooperative societies. All these required the full backing and support of the then NDA government at the Centre and at least five central ministries. It was possible because there was a shared vision for Delhi, civility and respect for the observance of due process.
Ever earlier, several pathbreaking bills had been passed by the Delhi government on the floor of the Delhi assembly — notable being the Delhi Prohibition of Smoking Act and Non-Smokers Health Protection Act 1996, a first for the whole country — followed by a slew of bills for the Medical Council, Nursing Council and several other bodies.
The Supreme Court has referred to “skirmishes” between the two levels of government in its 2018 order and castigated “anarchy”. The reported nocturnal attack on the chief secretary at the official residence of the chief minister, the nine-day sit-in at Raj Niwas, the insistence on the acceptance of the Jan Lokpal Bill and the demand for statehood for Delhi, besides starting anti-corruption cases against people who were not even under the government, were incompatible with the constitutional scheme envisioned for Delhi. The citizenry was lulled into believing that a huge mandate implied possessing the power to do anything. To ensure that none of this happens again may have, at least partially, propelled the effort to clip the wings of the Delhi Government through the amendment to the NCT Act 1991.
Be that as it may, the amendment contradicts the inherent right of the legislature to frame rules for the conduct of its own proceedings. It also requires the government to obtain the LG’s opinion on decisions before executive action is taken, which runs counter to the constitutional bench’s specific interpretation on the need to inform but not to have to wait for a return of the LG’s opinion — something which could take days, or never come.
Once the amendment to the NCT Act is enacted, the Transaction of Business Rules 1993, which stipulates the procedure to be followed by the lieutenant governor and the council of ministers, will also need to be altered. Both remain subservient to the language of the Constitution.
Bharat ki rajdhani, India’s capital, needs a shared vision, maturity and the will to uphold the Constitution — not to alter it. It remains to be seen whether the legislation will hold up to the judicial review that is bound to follow.
This column first appeared in the print edition on March 25, 2021 under the title ‘The Delhi arena’. The writer is a former secretary to the government of India and former chief secretary, Delhi