The provisions of the recently enacted GNCTD (Amendment) Act will not only paralyse governance in Delhi but also have grave repercussions on how federal governance is carried out in the country, a group of 76 former civil servants said in a joint statement on Friday.
This is an unfortunate move and bad in law, said the signatories to the letter including former Prasar Bharati CEO Jawhar Sircar, former secretary of Planing Commission N C Saxena, former IAS officer Aruna Roy, and ex-secretary of Department of Agriculture Siraj Hussain.
The Government of National Capital Territory of Delhi (Amendment) Act, 2021 accords primacy to Delhi's Lieutenant Governor (L-G) over the elected government. According to the legislation, the "government" in Delhi means the "Lieutenant Governor".
"Section 44 of the Act now states that before taking any executive action, the elected government shall have to take prior permission of the Lieutenant Governor, even in matters in which the Assembly has the right to make laws. This is in direct contravention of the Supreme Court's judgement...," the letter said.
By curtailing the powers of the Delhi Assembly and subordinating the executive power of the elected government to the Lieutenant Governor, Parliament has negated the provisions of Article 239 AA of the Constitution without amending the Constitution, but merely through amendments to the GNCTD Act, it said.
"This is an unfortunate move and bad in law. It deprives Delhi's citizens of the right to govern themselves in matters such as health, education, water, power, electric supply and roads. There is no justification to concentrate all powers of governance in the Union Government merely because Delhi is the country's capital," the letter stated.
This move will not only paralyse governance in Delhi, much to the detriment of public interest but also have grave repercussions on how federal governance is carried out in India, it said.
"In India's democracy, we have adopted a republican structure and the Westminster model, in which the Governor is a titular head, acting on the aid and advice of the Council of Ministers," the letter said.
This constitutionally mandated structure has been repeatedly upheld and endorsed by the honourable Supreme Court, it said.
"That the legislature is supreme within its functional powers is a cardinal federal principle. Elected representatives link the will of the people with that of the Government, regardless of whether citizens live in a state or a Union Territory," it added.
The demand for full statehood for Delhi has been consistently championed by all political parties, even though it is a National Capital Territory that may necessitate differential treatment, the letter said.
That led to the insertion of Article 239 AA into the Constitution of India, establishing an elected legislature for Delhi. The opening lines of Article 239 AA state that "the Council of Ministers shall be collectively responsible to the Legislative Assembly", it said.
Interpreting the scope of this provision, the honourable Supreme Court ruled that "the Lieutenant Governor has not been entrusted with any independent decision-making power. He 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 (Para 277)," it further said.
However, the recently enacted GNCTD (Amendment) Act, 2021 strikes at the root of these principles and renders null the democratic right of the citizens of Delhi, said the letter, written by the former civil servants under the aegis of Constitutional Conduct Group (CCG).
The CCG, according to the letter, has "no affiliation with any political party but is committed to the values and principles enshrined in the Constitution of India".
The former civil servants further said, "We are deeply concerned that Parliament should pass a law which appears to make a mockery of constitutional provisions and their interpretation by the Supreme Court. We recognise that the same strategy of ramming through changes in law, with no consultation with the legislature or discussion with other political parties, was gone through when Article 370 was abrogated with respect to Jammu and Kashmir."
"We fear that a pattern is being established by which similar strategies could be adopted to destroy the federal principles on the basis of which India's governance has been structured. The dangers of unilateral decision making to establish a culture of unitary politics will put federal democracy in danger. This would violate the basic structure of the Constitution," they said.
"We sincerely hope that the honourable Supreme Court, taking note of the fact that this law violates their own order, will declare it unconstitutional and restore the status quo ante," they said.
President Ram Nath Kovind gave his assent to the GNCTD (Amendment) Bill on March 28.
The Centre has maintained that the Bill is in line with the Supreme Court's July 2018 ruling on the ambit of powers of the Lieutenant Governor and the Delhi government after a series of run-ins between the two.
Union Minister G Kishan Reddy had said the amendments would lead to transparency and clarity in governance in the NCT of Delhi and enhance public accountability.