Government Of National Capital Territory Of Delhi (Amendment) Bill 2021 And Its Impact On Federalism
One of the most remarkable characteristics of our constitution is establishment of federalism as a fundamental structure though we don’t comprise a political system that is federal to its entirety, we do have a semi-federal set-up wherein rests a combination of federal and unitary features.
Looking at this arrangement which is federal in structure and unitary in spirit, famous Australian scholar K.C. Wheare called us a quasi-federal state. For a long time, the precise nature of India’s federation of states has been a bone of contention. In the constituent assembly, while detailing the proposed constitution, J.B. Kriplani president of the historic Meerut Session of the Indian National Congress in 1946 asserted that India must be federal ensuring maximum autonomy to the states.
Though after partition, a trend towards centralization became increasingly inexorable, the need for a federation was never ruled out as India’s composite and heterogeneous nature was far too real to be overlooked. Over the journey of 70 years of its independence, India has witnessed many peaks and valleys in its political and administrative scenario wherein there were blatant attempts to cluster all power in hands of the centre as well as overt endeavours to misuse autonomy and raise demands for separate independent states (secessionist movements).
To accommodate its richness of diversity and multiplicities (different religion, languages, ethnicities, cultures, beliefs, ideologies, traditions, customs etc) while ensuring collective existence without disturbing its unity and sovereignty, India practices a federal model which is highly distinct from the other nations like the US wherein the states are independent and sovereign in pertinence to their territories, the central government can’t alter their boundaries.
However the Indian constitution empowers the parliament to create, unite divide states, grants leeway to change their boundaries and names; provides residuary powers of legislation (power to make laws in a field not specified explicitly in the state, centre or concurrent list), accredits it with emergency provisions etc.
But the fact that under the scheme of our constitution, greater power is conferred upon the centre vis-à-vis the states does not mean that states are mere appurtenance of the centre; within the domain of allotted to them, state are supreme. The centre should not tamper with their powers and if it whittles down the power reserved for them, the judiciary being the guardian of the constitution should step in.
The recently passed GNCTD Bill 2021 pose vital questions on the idea of collaborative and pragmatic federalism in Indian democracy, with its implementation whether India will move towards coercive federalism and absolutism?
Also Read: Governor: A Titular Head?
GOVERNMENT OF NCT OF DELHI (AMENDMENT) BILL 2021
The Government of NCT of Delhi (amendment) Bill 2021 was introduced in Lok Sabha on 15 March’21. It amends the GNCTD Act 1991 in the name of providing a framework for the functioning of Legislative Assembly and the government of NCT of Delhi, seeks to curtail/limit certain powers and responsibilities of the Legislative Assembly and increase the prerogative of Lieutenant Governor through enforcing the following changes:
- The expression “government” referred to in any law to be made by the legislative assembly shall be henceforth mean the “lieutenant governor”.
- Legislative Assembly of Delhi should adhere to the Rules of Procedure and Code of Business established in Lok Sabha and be consistent with them.
- The Delhi Legislative Assembly shall not make any legislation to enable itself or its committees to administer the day to day matters or conduct any inquiry on administrative decisions; any rule made in contravention of this provision, before the commencement of GNCTD (amendment) 2021 shall be void. (retrospective application)
- The opinion of the Lieutenant Governor shall be sought before taking any executive action in pursuance of the decision made by Council of Ministers to exercise powers of elected government, list of matters requiring such seal of approval shall be prescribed by the LG himself.
- The act requires the Lieutenant Governor to reserve certain bills passed by the Legislative Assembly for the consideration of the President.
Parliament passed this bill, Lok Sabha on March 22 and Rajya Sabha on March 22. President Ram Nath Kovind gave his assent to the bill and officially accorded primacy to Delhi’s Lieutenant Governor over the elected government on March 28.
ANALYSIS OF PARLIAMENTARY DEBATES AND DISCUSSIONS
Ever since the introduction of the bill by the ministry of home affairs, it was saluted with immense furor & uproar and subsequent walkouts by the opposition. Given the number of numbers NDA has in both houses (absolute majority), not many bottlenecks were faced by the government to sail through the act smoothly.
However while watching the proceedings on the bill and deliberations circumventing it in the houses, it was evident that many politicians, several legal luminaries and votaries of federalism have unanimously dubbed the amended law as unconstitutional.
Repudiates Supreme court’s stance:
The bill has been claimed to have revived the fight over jurisdictional powers between Delhi’s elected representative government and nominated administrator-the L-G, which was resolved in the 2018 judgement of Government of NCT Delhi v/s Union of India and others, wherein the a five-judge bench led by CJI Deepak Mishra clearly stated that Delhi L-G is bound to act on the “aid and advice” of the city-state’s council of ministers in all matters that fall under state legislature’s jurisdiction- except for land, public order and police all of which is under centre’s control.
Further, it went on to say the constitution has mandated a federal balance wherein independence of a certain required degree is assured to the state governments. As opposed to centralism, a balanced federal structure mandates that the union does not usurp all the powers and the states enjoy their freedom without any unsolicited interference from the central government concerning matters which exclusively fall within their realm.
The bill provides enormous powers to the L-G to refer all the matters to the president, converting the phrase “any matter” to “every matter” thus whittling down the government’s command to smitheries. It blatantly overrules the judgement by making a ceremonial/titular centrally appointed administrator synonymous to the democratically elected government thus undermining the principles of representative democracy and promoting steps towards absolutism.
Resentment and criticism from the opposition:
The bill was met with unanimous condemnation and reproval by the MPs hailing from a range of political parties like INC, AAP, Shivsena, AITC etc. Owning to the absolute majority possessed by the government in both the houses, there existed no doubt that the aisle was clear for to bill to get passed but the viewpoints put forward during the deliberations by the contrasting parties enhanced my perspective about the issue and compelled me to think broadly and conclusively.
Dr Abhishek Manu Singhvi, Congress MP and senior advocate regarded the bill as the most pernicious and illegal bill tabled in the history of parliament, he emphasized that this bill doesn’t concern a particular party but the very basic fundamentals of federalism by exemplifying the possibility that we should not forget that tomorrow there can be BJP in power in Delhi and a different political colour in Delhi central, thus he reiterated that BJP MPs representing Delhi should have opposed the bill.
He called Delhi the only part of India on which there rests a separate article altogether 239A inserted by 69th amendment in 1991 which provided it with a special status of a state, truncated only 3 powers i.e., land, police and public order.
He said this bill blows the concept of pragmatic and collaborative federalism which we strived for 70 years to achieve to debris, he underlined that we as a nation in our factual operation after independence have experienced a huge amount of accidental and inadvertent (unintended) federalism through encouraging linguistic federalism, prompt judicial review (example striking down of NJAC, Anti-defection judgement on Karnataka election etc), invalidation on the exercise of presidential rule (as it triggers absolutism and undermines representation), inculcating Panchayati raj system, economic liberalism (NEP 1991 reforms), fiscal federalism between states, promoting and hearing regional parties (enabling them/granting authority to them to monitor themselves in their internal indigenous matters; example BRU agreement) etc. He highlights the actions of the government to pass this bill will pull back all of it and enforce coercive federalism.
Derek O’Brien, MP AITC emphasised the fact that India follows a Westminster/cabinet form of governance wherein ceremonial head as that of L-G is reigns but not rules. He underlined the fact that a party’s manifesto is not supreme to the constitution itself. He goes on to say “in a democracy bills should not be passed just by a mere majority but by building consensus, however, in Modi-Shah raj the term consensus is replaced by the word conquest.”
Among many others who opposed the bill, Priyanka Chaturvedi, MP Shivsena came out to raise her voice pretty strong by substantiating her claim that NDA longs for absolute unprompted powers by giving examples of how it tried to tamper the governments where it couldn’t win elections like Karnataka, Maharashtra, Arunachal Pradesh, Goa Madhya Pradesh, Uttarakhand etc.
Surendra Singh Nagar, MP AAP while attacking the BJP brought out the hypocrisy it possessed, he accentuated the fact that its manifesto of 2003, 2008,2013 and 2015 promised to grant full state ship to Delhi. He claimed the BJP-led central government has brought the new law out of vengeance as the saffron party lost three consecutive assembly polls to AAP whose Arvind Kejriwal won by a landslide pyrrhic victory.
He went to slam the supremacy of L-G as proposed in the law by demanding President be declared as government and the Council of ministers & Prime Minister to be rendered as of same status as Delhi’s government.
While talking about the second clause of the amendment which forces the Legislative Assembly of Delhi to adhere to the Code of Business rules of Lok Sabha, Nagar pointed out that every legislature is unique; there rests no law or constitutional provision that dictates uniformity in conduct rules of different legislatures and certainly none that says an assembly’s rules must be the same as those of the Lok Sabha.
It is worth enough to note that even Rajya Sabha and Lok Sabha don’t have same conduct roles despite both being houses of parliament.
Clause 3 of the act which invokes retrospective application invited heavy debates in the parliament, as it forbids the Assembly to constitute its oversight committees for Delhi’s administration and stipulates that all presently existing committees will also be void.
This will render Delhi Assembly incapable to scrutinize actions, laws etc of the state government in the future. Though article 239AA, the original GNCTD act 1991 and Transaction of Business Rules 1993 mandate the Delhi government to seek the opinion of L-G, this amendment exponentially expands his powers.
Though it doesn’t mention explicitly L-G concurrence is necessary before the implementation of any executive’s policy agenda, this change in the law can effectively stall any initiative of the state government if the administrator doesn’t conform with it. So, on papers it may seem that mere opinion of the L-G is to be sought, in practice, it may mean his concurrence is mandatory. This is in complete violation of SC’s judgement which categorically stated L-G’s concordance is not needed.
Government’s reasoning and stand
The government has claimed there is nothing unconstitutional about the bill, it merely attempts to clear the ambiguities in Article 239AA, GNCTD act 1991 and TRB 1993.G. Kishan Reddy, Minister of State for Home affairs asserted that this amendment was necessary to implement the guidelines laid down in Delhi 2018 judgment properly.
Bhupendra Yadav, MP BJP assured the house that the law doesn’t intend to take away powers from the Delhi assembly, only promises some additional functions to L-G as given in all other union territories.
J P Nadda, MP BJP also the national president of BJP reassured the house that all the amendments in the act lie within the constitutional framework and pose no threat to collaborative federalism.
Reaction of Delhi government
Delhi’s Chief Minister Arvind Kejriwal has regarded the bill as an insult to the people of Delhi as it effectively takes away the powers from those who were democratically elected by Delhi’s Janata and gives it to those who were defeated. He urged the centre to repeal the law by saying that AAP dispensation is ready to fall at the feet of Modi to plead for representative democracy. Or else they’ll be forced to challenge it in the apex court.
Deputy Chief Minister of Delhi Manish Sisodia called the day darkest day of democracy, resented the passage of the bill by slamming the BJP for converting the temple of democracy- the parliament into a black spot.
Raghav Chadha, national spokesperson AAP called the bill an attempt to make the Delhi government “administratively impotent” by a party that has been rendered “electorally impotent” by the Janata of Delhi.
Before the commencement of my research, I was opposed to the passage of this bill, based my judgements on mere internet news notifications popped on my mobile’s screen. But after listening to parliamentary deliberation and discussions in pertinence to it, reading various articles ranging from different publishing houses I got relevant reasons to substantiate my perspective more articulately.
Looking at the proceedings of the houses, I realized how having an absolute majority in parliament can enable a party to lawfully stultify the democratic federal structure of a nation without any hindrance. What I conclude from my study and exploration is that this bill by exterminating the status of a democratically elected government to a glove puppet of a ceremonial head who has absolutely no public support/backing but functions on the centre’s directives renders the Delhi assembly to a paper tiger.
It revokes the special status of Delhi which was accorded to it constitutionally without following the due procedure of law (through special majority). Not only is this bill inherently violative of SC judgement of 2018 which spelt lucidly the jurisdiction of L-G and Legislative Assembly but also is abusive of Doctrine of Pith and Substance.
The supremacy of the constitution should be held “Sarv Priya” and it should be put above parliament.
This article is written by Miss. Shreya Bhukhmaria, a 1st Year B.A. LL.B (Hons.) student at NALSAR University of Law Hyderabad
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