Bill It To The L-G, Please

In July 2018, a five-judge ­Constitution Bench of the Supreme Court emphatically decided that Delhi바카라�s 바카라�Lieutenant Governor has not been entrusted with any independent decision-making power바카라� and has to 바카라�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.바카라� 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 territory바카라�s top executive in 2015, Kejriwal had routinely argued that Delhi바카라�s Lieutenant Governor바카라�nominated by the Centre바카라�prevented his government from performing its day-to-day duties citing ambiguities in the Constitution over the separation of powers between the NCT바카라�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 Delhi바카라�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 바카라�obstructionist바카라�.

The BJP-led central government now appears determined to turn the Supreme Court바카라�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 Delhi바카라�s L-G; the nominated administrator will be equivalent to the government of Delhi. The legislation바카라�s critics say it emasculates the constitutional ­mandate of Delhi바카라�s 70-member ­legislature and renders the elected representatives with ­practically no power to legislate laws, policies and schemes, while also being 바카라�blatantly unconstitutional for ­demolishing the basic structure doctrine on the ­principle of federalism바카라�.

Predictably, Kejriwal and his AAP colleagues are furious and are agitating against the 바카라�BJP바카라�s attempt at back-door entry to power바카라�. The Congress is peeved too, as are outfits from Jammu and Kashmir바카라�the National Conference and People바카라�s Democratic Party바카라�which saw their political lives halt abruptly when the Centre, in August 2019, abrogated Article 370 and simultaneously sliced the state into two Union ­territories바카라�J&K, with an elected ­assembly, and centrally administered Ladakh. The BJP, of course, has ­dismissed all criticism as ­바카라�unfounded바카라�, saying the bill will end all ambiguity and confusion.

Senior advocate Rahul Mehra, standing counsel for AAP바카라�s Delhi ­government, tells Outlook, 바카라�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 Centre바카라�s nominee.바카라� Mehra says the only 바카라�real ambiguity바카라� over separation of powers between the government and the L-G was on the issue of whether the elected government must mandatorily seek the administrator바카라�s opinion on matters that aren바카라�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 Delhi바카라�s power arithmetic thus: 바카라�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-G바카라�s opinion on every matter will not just be mandatory, but also binding.바카라�

Faizan Mustafa, vice chancellor of Hyderabad바카라�s NALSAR University of Law, says that 바카라�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 democracy바카라�. 바카라�By making it incumbent on the Delhi government to take the L-G바카라�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,바카라� he says.

While canvassing the legal ­anomalies in the bill, which, he says, 바카라�doesn바카라�t even make an attempt to ­appear constitutional바카라�, Mustafa also maintains that the Delhi chief minister바카라�s opposition to the dilution of his government바카라�s powers is, perhaps, 바카라�on shaky ground바카라� because of his strong public support for the Centre바카라�s ­decision to downgrade J&K바카라�s full statehood. For Kejriwal and his ­colleagues, the J&K analogy will be hard to brush aside.

바카라�There is no denying that the Centre바카라�s bill is unconstitutional and we must all fight against it, but Kejriwal is only shedding crocodile tears,바카라� says Delhi Congress president Anil Chaudhary. 바카라�He supported the BJP on Kashmir and now that the BJP is doing the same thing to him, he바카라�s crying 바카라�murder of democracy바카라�.바카라� His hypocrisy has been completely ­exposed.바카라� Chaudhary alleges a 바카라�fixed match between AAP and BJP바카라� over the bill and said it was passed by the Union cabinet 50 days back, but Kejriwal didn바카라�t react then.  

The unease of AAP leaders in ­countering charges over the party바카라�s stand on the bifurcation and ­simultaneous downgrading of J&K바카라�s ­statehood is ­evident. 바카라�These are two completely different issues,바카라� AAP MLA Atishi tells Outlook. 바카라�Kashmir had its own peculiarities because of its internal security and cross-border terrorism issues바카라�. There is no such thing in Delhi; the situation in Kashmir may have created some ­hindrances for the Centre because of the state바카라�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.바카라�

Atishi also ­argues that since the ­legislative ­assembly in Delhi was set up through the 69th constitutional amendment, any move to alter the amendment바카라�s provisions 바카라�must also have been done through a constitutional amendment, not a regular ­legislation바카라�. The MLA ­alleges the bill is only a means to 바카라�punish AAP and the people of Delhi for defeating the BJP in ­successive elections바카라�.

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 바카라�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.바카라�