GNCTD Act 2021: Who is the boss in Delhi?

By Dr Lokendra Malik

When the people of Delhi are suffering from the tsunami of Covid-19 and they need the government’s support to save their lives and livelihoods, the Narendra Modi government has implemented an unconstitutional transfer of power in the national capital against a popular mandate. The Ministry of Home Affairs (MHA) has notified the enforcement of the Government of NCT of Delhi (Amendment) Act 2021 a few days ago under which the Lieutenant Governor (L-G) has assumed the authority of the “Government of Delhi”. Now, Delhi’s Chief Minister Arvind Kejriwal and his cabinet colleagues will need the approval of the L-G before taking any decision or ann­ouncing any policy or programme for the welfare of the people of Delhi. In a practical sense, the Modi government has reduced Delhi to a union territory. This is nothing but a fraud with the people of Delhi who had voted in favour of a political party to run the administration in Delhi a few years ago in the hope of getting a full statehood for Delhi.

Sadly, the central government has used its parliamentary majority to butcher popular ambitions and snatch power from an elected government that has legislative support. Not only this, the transfer of power also goes against the 2018 verdict of the Supreme Court that had given a freehand to the Kejriwal government to run the Delhi administration without knocking on the doors of the L-G in every case. The amended NCT Act dilutes the Supreme Court’s judgment as well as the basic spirit of our parliamentary democracy that allows the popularly elected persons to run the government.

In a parliamentary democracy as enshrined under the Indian Constitution, it is the elected government that gets a mandate from the people to run the administration and it always remains responsible to the legislature that checks its commissions and omissions and holds the power to control it. The moment the legislature expresses its lack of trust in the government, it cannot remain in power. So, there is always an effective check on the functioning of an elected government in a parliamentary system. This is the beauty of parliamentary democracy.

Now, the L-G has become very powerful without having any responsibility. As a nominee of the central government, the L-G reports to the Union home minister and holds his office during the pleasure of the president who can remove him at any time if his political masters ask him to do so. Generally, a loyal retired babu gets the opportunity to become the L-G of some union territories, including Delhi. The L-G is not accountable to the people or their representatives in the legislature. He is the central government’s man. The amended NCT Act empowers him to delay the decisions of the elected government that would affect the working of the Kejriwal government adversely.

In several cases, the Supreme Court has observed that the governor or the L-G cannot override the chief minister in a parliamentary democracy but the Delhi L-G has become the master of chief minister who will have to plead before him for getting approval of his policies and decisions. The L-G cannot be allowed to dictate terms to the popularly elected government in a parliamentary democracy.

“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations”, observed Justice Krishna Iyer in the case of Samsher Singh vs State of Punjab in 1974.

The L-G has the power to refer the matter to the president if he does not agree with the cabinet’s decisions or proposals. This head mastery of L-G is against the constitutional scheme and judicial precedents. In 2018, the Supreme Court had categorically observed that the Delhi government does not need the concurrence of the L-G before taking every decision. The L-G was allowed to exercise his powers or refer cases to the president only in some specific cases as mentioned in the NCT Act. “The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism”, the Supreme Court had observed regarding the exercise of power by the L-G of Delhi in the case of Government of NCT of Delhi vs Union of India.

Admittedly, the amended NCT Act will disturb the power-sharing equations in Delhi badly. The Aam Aadmi Party is the ruling party in Delhi and the BJP is ruling at the centre. The latter was completely rejected by the people of Delhi in the last two assembly elections. Now it wants to strengthen its roots in Delhi by weakening the Kejriwal government by using legal tactics. The Kejriwal government has some genuine apprehensions of misuse of powers by the L-G who acts on the instructions of his political masters sitting in North/South Blocks. The amended law is likely to obstruct the functioning of the Kejriwal government in many ways. It also threatens the working of federal governance in the country. I think the Kejriwal government has a good case for challenging the constitutional validity of the amended NCT Act in the Supreme Court. Let the top court decide who has a popular mandate to govern Delhi.

The people of Delhi had reposed faith in Kejriwal and his colleagues who are collectively responsible to the people’s representatives in the assembly, not in the unelected LG. The L-G should not be allowed to delay the decisions of the elected government. The people have empowered the government to run the administration and it is only the people who can oust the government through democratic means in elections. The people of Delhi need the government’s support during this difficult time and the government should not face any difficulty in providing the necessary relief to mitigate their sufferings. This is not the time to play politics and frustrate the opposition-led governments. This is the time to strengthen democracy and fight jointly against the coronavirus that has ruined millions of lives. Unfortunately, all governments have failed the people during this time. This is an unprecedented crisis in human history. The central government should empower the state governments at this time. It should not snatch powers from them. At a time when Delhi is severely suffering from the Covid-19 crisis, thousands of people are dying every day without getting oxygen and beds, this change of guard does not send a good message to the people. This is a case of colourable legislation.

Will the L-G of Delhi be accessible to the people? Will the L-G bear the responsibility for Covid-19 management or mismanagement in Delhi? It looks as if the Modi government has undermined the federal system and parliamentary democracy which are parts of the basic structure of the Constitution.

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Let me end the discussion with the scholastic words of former Chief Justice of India Dipak Misra in the Delhi government’s case: “Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the ministries and every individual Minister is responsible for every act of the ministry. This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collectively responsibility would stand negated.”

—The writer is Advocate, Supreme Court of India
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