Updated: March 22, 2021 8:52:37 am
The political theorist Jean Louis De Lolme had once famously observed that “British Parliament can do everything but make a man a woman, a woman a man”. The English statesman Lord Burleigh had remarked in a similar vein that England could “never be ruined but by a Parliament”. In India, the Constitution, and not Parliament, is supreme; yet, at times, parliamentary enactments give the indication that the latter can do anything. At a time when the Freedom House report has downgraded India as a “partly free” country and V-Dem’s report has rubbed salt on our wounds by terming India an “electoral autocracy”, the NCT Bill, 2021, introduced in the Lok Sabha last week, will further dent our international reputation.
This author has several disagreements with both the reports, yet who can deny that we are not doing enough to preserve our democratic capital and unnecessarily enacting laws or coming up with policies that have possibilities of tilting our democracy towards authoritarianism. The overriding powers given to the Governor-General in the Government of India Act, 1935 was opposed by the leaders of our freedom movement, and this opposition prevented the legislation from being enforced at the Centre. The Delhi Bill takes us back to British era.
Such Bills could strengthen the international perception of India becoming an electoral autocracy. This ill-timed move not only negates cooperative federalism but also upturns the fundamental principles laid down by the five-judge bench judgment of the Supreme Court in 2018. While the court was hopeful of a “constitutional renaissance” in the country, the Bill if passed in the current form would sow the seeds of absolutism. Justice D Y Chandrachud had, in fact, noted in his concurring judgment that democracy is in danger due to authoritarian tendencies in several countries.
The then CJI Dipak Misra had devoted 120 pages in elaborating 12 fundamental principles of our liberal constitutional democracy with constitutionalism or the concept of limited powers as its central idea. To sustain what he called constitutional glory, we must attach the highest importance to people who are the real sovereigns and who speak through their elected representatives.
The Bill takes away almost all the powers of elected representatives.
CJI Misra had also observed that courts need to take recourse to pragmatic interpretation to further the spirit of Constitution, rule of law and participatory democracy. The clear message of the judgment was that Delhi’s LG is just an “administrator” and an administrative head bound by the “aid and advice” rendered by Delhi’s Council of Ministers. The LG, according to this verdict, has no independent powers and has to go by the advice of the council of ministers or comply with the orders of the President on matters referred to him. His concurrence is not needed in every matter and he can refer matters to the President only in exceptional situations and not in a “routine or mechanical manner”. The apex court had reversed the judgment of Delhi High Court which had held the LG to be a master of his own, not bound by the “aid and advice” of his ministers. The new Bill seeks to reinstate these powers.
Similarly, the then CJI also talked of “constitutional objectivity” as the key to checks and balances between the legislature and executive — one that ensures that the two operate within their allotted spheres since “legitimate constitutional trust” is based on distribution and separation of powers with denial of absolute power to any one functionary being the ultimate goal. The Court, therefore, held that “any matter” in Article 239AA(4) does not mean “every matter”. In other words, the LG cannot refer any matter to the President; he has to employ “constitutional objectivity” and exercise this power in the rarest of rare situations for sound and valid reasons. The LG does not have the power to change every decision or differ with every decision of the Council of Ministers.
In an equally authoritative concurring opinion, Justice Ashok Bhushan had favoured vesting real powers in the representative government rather than in the nominated LG. That the LG must reign and not rule is the core principle of the cabinet system of governance. A two-judge bench of the apex court in 2019 did concede that as far as the anti-corruption bureau is concerned, the LG will have exclusive powers but on the issue of services, the two judges differed and the matter was referred to a larger bench.
Having supported the near abrogation of Article 370, Delhi CM Arvind Kejriwal should have no face to oppose the dilution of the elected government’s powers in Delhi — after all, Delhi is a Union Territory rather than a full-fledged state like erstwhile Jammu & Kashmir.
In a master stroke, the Centre invoked Article 370 itself to amend the Constitution by a Presidential Order (C.O. 272 of 2019) and changed the definitions of certain terms in Article 367. As a result, the Constituent Assembly of Jammu and Kashmir, dissolved way back on January 26,1957, was made the legislative assembly of the state. Article 370 was also invoked to make another historical change: The legislative assembly of the erstwhile state was henceforth to be construed as the Governor of Jammu and Kashmir. The J&K government was deemed to be the Governor acting on the advice of his council of ministers. In a similar manner, the Delhi Bill stipulates that the government of Delhi will mean the LG. It goes one step ahead and does not require the LG to act on the advice of the council of ministers.
The legislative assembly or its committees can no longer make rules to enable itself or its committees to consider the matters of day to day administration or conduct inquiries in relation to administrative decisions. Making the law retrospective, the Bill provides that if such rules have been framed they will become void. The Bill also makes it incumbent on the Delhi government to take the LG’s opinion before taking any executive action, virtually taking away almost all powers of the elected government.
The Bill should be referred to a select committee and not passed in haste like the Farm Bills. Evolving consensus in such matters would be consistent both with federalism as well as the high principles laid down by the Supreme Court.
This column first appeared in the print edition on March 22, 2021 under the title ‘Capital Punishment’. The author is Vice-Chancellor NALSAR University of Law, Hyderabad. The views are personal