Seemingly, the essence of our democratic republic is over. Its legitimacy is being severely eroded. This proposition owes much to the recent Government of National Capital Territory Delhi (Amendment) Act, 2021, or the Delhi Act for short, hurriedly passed by Parliament, enhancing the powers of the Lieutenant Governor of Delhi. The Constitution allows the President some limited space to check the excesses of the government by asking it to reconsider the Bill, but the President also failed in his duties to preserve, protect and defend the Constitution and gave assent to the Bill on March 29.
The legal deadlock between the elected Delhi government and the Union government appointee Lt-Governor (L-G) is not very old. The political battle turned theatrical when Delhi High Court reduced an elected government merely to a ‘parasitically dependent’ department of the central government. The L-G started acting as an agent of the Centre, a trend that goes against the spirit of a federal constitution.
The constitutional issue was resolved in 2018 by the Supreme Court in Government of NCT of Delhi v. Union of India. The Constitution Bench comprising then Chief Justice of India Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan ruled that the “L-G is an administrative head in the limited sense and bound by the aid and advice of NCT Government in areas other than those exempted.” The apex court observed that the elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have appropriate powers so as to perform their functions effectively and efficiently. It further held that “the exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi.”
But if the government at the Centre is determined, even decisions of the apex court cannot come in its way. Precedents are several, when the government has got laws passed in order to overcome the difficulties created by court judgements. For instance, in 1986, the Rajiv Gandhi government got passed an act titled ‘The Muslim Women (Protection of Rights on Divorce) Act, 1986’ that nullified the Supreme Court’s judgement in the Shah Bano case. Diluting the Supreme Court judgement, the Act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. The Modi government recently enacted a law to overturn a Supreme Court order concerning certain safeguards against arrest under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. This has been done despite clear directives of the Supreme Court that the government cannot dilute its judgements. This time, something more serious is at stake.
The Delhi Act not only reflects the frustration of a party – the BJP -- that was badly defeated in the last two elections to the Delhi Assembly and was trying its best to settle a score, but also makes the Delhi government subordinate to Delhi’s L-G, an unelected functionary, by declaring him to be the “Government of Delhi”. It provides that the opinion of the L-G “shall be obtained” on all such matters as may be specified by the L-G, before taking any executive action on decisions of the Council of Ministers of the Delhi government. The Bill also prohibits the Legislative Assembly from making any rule to enable itself or its committees to: (i) consider the matters of day-to-day administration of the NCT of Delhi and (ii) conduct any inquiry in relation to administrative decisions. Further, any provision in force having the above-said effect will be void.
The Delhi Act is a serious blow to our federal system and parliamentary democracy. Ignoring the guidelines of the Supreme Court, pronounced in the 2018 case, it has abducted the democratic power from an elected government and transferred it to an unelected authority that is not accountable to the people of Delhi. This is nothing but a clear case of exercising power without responsibility. It is a misuse of its parliamentary majority by a government that is determined to weaken the Opposition at any cost. Constitutional and political pundits rightly believe that this Act does not only restrict the powers of an elected government, but this is a fraud on the people of Delhi who had chosen a government to serve them while the central government is deliberately creating hurdles in its functioning. Ultimately, it is the people of Delhi who will suffer because of this political confrontation between the Centre and the Delhi government. In addition, this Act also violates the fundamental principles of our parliamentary democracy and federal structure, which are parts of the basic structure of the Constitution. Parliament cannot violate these inviolable principles.
Parliament is not above the Constitution. It is bound to exercise its law-making powers within the constitutional framework and well-settled norms. Parliamentary majority cannot be a tool of harassment and exploitation of Opposition-ruled governments that do not fall in line with the ruling dispensation at the Centre. The Delhi Act is ill-advised and dangerous for our parliamentary democracy. A legal challenge appears inevitable. The Supreme Court should reinforce its own ruling in 2018 and thus reinforce democratic principles.
(Malik is advocate, Supreme Court and Singh is Professor of Law at NLU, Odisha)