In July 2018, a five-judge Constitution Bench of the Supreme Court emphatically decided that Delhi’s “Lieutenant Governor has not been entrusted with any independent decision-making power” and has to “either act on the aid and advice of the council of ministers or he is bound to implement the decision taken by the President on a reference being made by him.” As it turns out now, the 2018 judgment in the Government of NCT of Delhi v. Union of India was a pyrrhic victory for Delhi chief minister Arvind Kejriwal.
Since assuming the role of the national capital territory’s top executive in 2015, Kejriwal had routinely argued that Delhi’s Lieutenant Governor—nominated by the Centre—prevented his government from performing its day-to-day duties citing ambiguities in the Constitution over the separation of powers between the NCT’s elected head and nominated administrator. Following a three-year-long legal battle, the unanimous apex court judgment had finally brought clarity over the constitutional mandate of Delhi’s Executive, its elected representatives and the L-G. Indeed, the main judgment authored by then Chief Justice Dipak Misra and two concurring judgments authored by Justices D.Y. Chandrachud and Ashok Bhushan had also warned the L-G against being an “obstructionist”.
The BJP-led central government now appears determined to turn the Supreme Court’s verdict on its head through the Government of NCT of Delhi (Amendment) Bill, 2021. The Bill, passed by the Lok Sabha on March 22 and the Rajya Sabha on March 24, bestows wide-ranging executive powers on Delhi’s L-G; the nominated administrator will be equivalent to the government of Delhi. The legislation’s critics say it emasculates the constitutional mandate of Delhi’s 70-member legislature and renders the elected representatives with practically no power to legislate laws, policies and schemes, while also being “blatantly unconstitutional for demolishing the basic structure doctrine on the principle of federalism”.
Predictably, Kejriwal and his AAP colleagues are furious and are agitating against the “BJP’s attempt at back-door entry to power”. The Congress is peeved too, as are outfits from Jammu and Kashmir—the National Conference and People’s Democratic Party—which saw their political lives halt abruptly when the Centre, in August 2019, abrogated Article 370 and simultaneously sliced the state into two Union territories—J&K, with an elected assembly, and centrally administered Ladakh. The BJP, of course, has dismissed all criticism as “unfounded”, saying the bill will end all ambiguity and confusion.
Senior advocate Rahul Mehra, standing counsel for AAP’s Delhi government, tells Outlook, “The bill is unconstitutional, unethical, immoral and in complete contravention of the SC judgment, which had upheld the supremacy of the elected government in legislating and administering on all matters, except those of land, public order and the police, which were under control of the central government and so, tangentially governed through the L-G as the Centre’s nominee.” Mehra says the only “real ambiguity” over separation of powers between the government and the L-G was on the issue of whether the elected government must mandatorily seek the administrator’s opinion on matters that aren’t listed in the excepted category. He says the only unresolved issue in Delhi is on who should control services (the bureaucracy) and this is presently sub judice as the Delhi government had sought clarification from the apex court on this limited aspect of the 2018 verdict.
P.D.T. Achary, a former secretary general of the Lok Sabha, sums up the proposed changes in Delhi’s power arithmetic thus: “Firstly, the amendment will effectively forbid the Delhi assembly from making rules to enable itself or its committees to consider matters of day-to-day administration. Secondly, it recognises the L-G as the government, which means the person holding this office will be under no obligation to implement any law passed by the assembly or to heed the aid and advice of the council of ministers. And lastly, it will render the elected government non-functional because the L-G’s opinion on every matter will not just be mandatory, but also binding.”
Faizan Mustafa, vice chancellor of Hyderabad’s NALSAR University of Law, says that “forget prima facie, the bill is ex facie unconstitutional as it is in clear violation of the basic structure doctrine and makes a mockery of electoral democracy”. “By making it incumbent on the Delhi government to take the L-G’s opinion before taking any executive decision, the bill virtually robs the elected government of its constitutional mandate; under such a scheme, there is actually no need to have an assembly in Delhi anymore,” he says.
While canvassing the legal anomalies in the bill, which, he says, “doesn’t even make an attempt to appear constitutional”, Mustafa also maintains that the Delhi chief minister’s opposition to the dilution of his government’s powers is, perhaps, “on shaky ground” because of his strong public support for the Centre’s decision to downgrade J&K’s full statehood. For Kejriwal and his colleagues, the J&K analogy will be hard to brush aside.
“There is no denying that the Centre’s bill is unconstitutional and we must all fight against it, but Kejriwal is only shedding crocodile tears,” says Delhi Congress president Anil Chaudhary. “He supported the BJP on Kashmir and now that the BJP is doing the same thing to him, he’s crying ‘murder of democracy’.… His hypocrisy has been completely exposed.” Chaudhary alleges a “fixed match between AAP and BJP” over the bill and said it was passed by the Union cabinet 50 days back, but Kejriwal didn’t react then.
The unease of AAP leaders in countering charges over the party’s stand on the bifurcation and simultaneous downgrading of J&K’s statehood is evident. “These are two completely different issues,” AAP MLA Atishi tells Outlook. “Kashmir had its own peculiarities because of its internal security and cross-border terrorism issues…. There is no such thing in Delhi; the situation in Kashmir may have created some hindrances for the Centre because of the state’s own problems, but the elected government of Delhi is not a hindrance to the Centre in any way because issues like police and public order, both admittedly unique to the national capital, are already under central jurisdiction.”
Atishi also argues that since the legislative assembly in Delhi was set up through the 69th constitutional amendment, any move to alter the amendment’s provisions “must also have been done through a constitutional amendment, not a regular legislation”. The MLA alleges the bill is only a means to “punish AAP and the people of Delhi for defeating the BJP in successive elections”.
Now that the Rajya Sabha too has passed the bill, another legal battle in the Supreme Court is the obvious recourse for the AAP government, says Mustafa. However, he cautions that in such an eventuality “the people of Delhi will be the losers once again because the legal battle on a matter of constitutional interpretation will be a long-drawn one and, in the meanwhile, governance in Delhi will suffer because of the tug-of-war between the elected government and the nominated head.”
