Government

GNCTD Amendment Act Deprives Delhi's People of Elected Govt: 76 Ex-Civil Servants Write

'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.'

New Delhi: Seventy six former civil servants of the All India Services and Central Services have released a statement condemning the Centre’s action of subordinating the executive power of the elected government in Delhi by a recent constitutional amendment.

The controversial bill that seeks to clarify that the “government” in Delhi means the “Lieutenant Governor” was passed by Lok Sabha on March 22 amidst strong opposition from the Congress and the Aam Aadmi Party, both of whom had said that the legislation was “unconstitutional”.

The Government of National Capital Territory of Delhi (Amendment) Act, 2021, the statement notes, has negated relevant portions of the constitution, like Article 239 AA , without amending the constitution.

Noting that there is no justification in concentrating powers of governance in the Centre with the logic that Delhi is the national capital, the writers observe that the move deprives Delhi’s citizens of the right to govern themselves.

Also read: Centre’s Delhi Amendment Bill is at Odds With Supreme Court’s Ruling and the Constitution

The former civil servants expressed deep concerned that the Act does not consider the sanctity of constitutional provisions and their interpretation by the Supreme Court but instead makes “mockery” of them.

The writers urged the Supreme Court to take note of the matter and declare the Act unconstitutional.

The full statement is given below:

We are a group of former civil servants of the All India Services and Central Services who have worked for decades with the Central and State Governments. As a group, we have no affiliation with any political party but are committed to the values and principles enshrined in the Constitution of India.

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. This constitutionally mandated structure has been repeatedly upheld and endorsed by the Honourable Supreme Court. 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.

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. That led to the insertion of Article 239 AA into the Constitution of India, establishing an elected legislature for Delhi. Ambiguities in the interpretation of Article 239 AA have been clarified by the Honourable Supreme Court in its Constitution Bench judgment of 4th July 2018 (Govt. Of NCT of Delhi vs. Union of India)

The opening lines of Article 239 AA states, “The Council of Ministers shall be collectively responsible to the Legislative Assembly.” 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).

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.

The Statements and Objectives of the Act states; “It further seeks to ensure that the Lieutenant Governor is necessarily granted an opportunity to exercise the power entrusted to him under proviso to clause (4) of article 239AA of the Constitution, in select category of cases and also to make rules in matters which incidentally encroach upon matters falling outside the purview of the Legislative Assembly.”

First, a new sub-section has been added to Section 21 of the GNCTD Act, changing the definition of the ‘Government’ to mean the ‘Lieutenant Governor.’ This provision appears to have turned parliamentary democracy on its head.

Second, Section 33 of the act, which relates to “conduct of its business” states that the State legislature can enact rules “which shall not be inconsistent with the Rules of Procedure and Conduct of Business in the House of the People“. All State legislatures have the right to frame their own rules; indeed, the rules of the Delhi Assembly are nearly identical with those of the UP Assembly. Even the Lok Sabha and Rajya Sabha Rules are not identical.

Third, 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 judgment, where it stated; “A conjoint reading of clauses (3) (a) and (4) of Article 239AA, divulges that the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative Assembly and accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent list and all, but three excluded subjects, in the State List.” (para 277(XV)).

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. 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. 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.

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.

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.

SATYAMEVA JAYATE

The following are the statement’s signatories.

S.P. Ambrose IAS (Retd.) Former Additional Secretary, Ministry of Shipping & Transport, GoI
Anand Arni R&AW (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
J.L. Bajaj IAS (Retd.) Former Chairman, Administrative Reforms and Decentralisation Commission, Govt. of Uttar Pradesh
G. Balachandhran IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
Vappala Balachandran IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
Gopalan Balagopal IAS (Retd.) Former Special Secretary, Govt. of West Bengal
Chandrashekhar Balakrishnan IAS (Retd.) Former Secretary, Coal, GoI
Rana Banerji IAS (Retd.) Former Special Secretary, Cabinet Secretariat (R&AW), GoI
Aurobindo Behera IAS (Retd.) Former Member, Board of Revenue, Govt. of Odisha
Madhu Bhaduri IFS (Retd.) Former Ambassador to Portugal
Ravi Budhiraja IAS (Retd.) Former Chairman, Jawaharlal Nehru Port Trust, GoI
Sundar Burra IAS (Retd.) Former Secretary, Govt. of Maharashtra
Rachel Chatterjee IAS (Retd.) Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh
Gurjit Singh Cheema IAS (Retd.) Former Financial Commissioner (Revenue), Govt. of Punjab
Anna Dani IAS (Retd.) Former Additional Chief Secretary, Govt. of Maharashtra
Vibha Puri Das IAS (Retd.) Former Secretary, Ministry of Tribal Affairs, GoI
P.R. Dasgupta IAS (Retd.) Former Chairman, Food Corporation of India, GoI
Pradeep K. Deb IAS (Retd.) Former Secretary, Deptt. Of Sports, GoI
Nitin Desai IES (Retd.) Former Secretary and Chief Economic Adviser, Ministry of Finance, GoI
M.G. Devasahayam IAS (Retd.) Former Secretary, Govt. of Haryana
Sushil Dubey IFS (Retd.) Former Ambassador to Sweden
A.S. Dulat IPS (Retd.) Former OSD on Kashmir, Prime Minister’s Office, GoI
K.P. Fabian IFS (Retd.) Former Ambassador to Italy
Prabhu Ghate IAS (Retd.) Former Addl. Director General, Department of Tourism, GoI
Gourisankar Ghosh IAS (Retd.) Former Mission Director, National Drinking Water Mission, GoI
S.K. Guha IAS (Retd.) Former Joint Secretary, Department of Women & Child Development, GoI
H.S. Gujral IFoS (Retd.) Former Principal Chief Conservator of Forests, Govt. of Punjab
Meena Gupta IAS (Retd.) Former Secretary, Ministry of Environment & Forests, GoI
Wajahat Habibullah IAS (Retd.) Former Secretary, GoI and former Chief Information Commissioner
Siraj Hussain IAS (Retd.) Former Secretary, Department of Agriculture, GoI
Kamal Jaswal IAS (Retd.) Former Secretary, Department of Information Technology, GoI
Vinod C. Khanna IFS (Retd.) Former Additional Secretary, MEA, GoI
Ajai Kumar IFoS (Retd.) Former Director, Ministry of Agriculture, GoI
Ish Kumar IPS (Retd.) Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
Sudhir Kumar IAS (Retd.) Former Member, Central Administrative Tribunal
P.K. Lahiri IAS (Retd.) Former ED, Asian Development Bank & Former Revenue Secretary, GoI
B.B. Mahajan IAS (Retd.) Former Secretary, Deptt. of Food, GoI
Harsh Mander IAS (Retd.) Govt. of Madhya Pradesh
Amitabh Mathur IPS (Retd.) Former Director, Aviation Research Centre and Former Special Secretary, Cabinet Secretariat, GoI
Lalit Mathur IAS (Retd.) Former Director General, National Institute of Rural Development, GoI
Aditi Mehta IAS (Retd.) Former Additional Chief Secretary, Govt. of Rajasthan
Avinash Mohananey IPS (Retd.) Former Director General of Police, Govt. of Sikkim
Deb Mukharji IFS (Retd.) Former High Commissioner to Bangladesh and former Ambassador to Nepal
Shiv Shankar Mukherjee IFS (Retd.) Former High Commissioner to the United Kingdom
Nagalsamy IA&AS (Retd.) Former Principal Accountant General, Tamil Nadu & Kerala
Surendra Nath IAS (Retd.) Former Member, Finance Commission, Govt. of Madhya Pradesh
P. Joy Oommen IAS (Retd.) Former Chief Secretary, Govt. of Chhattisgarh
Amitabha Pande IAS (Retd.) Former Secretary, Inter-State Council, GoI
Alok Perti IAS (Retd.) Former Secretary, Ministry of Coal, GoI
R. Poornalingam IAS (Retd.) Former Secretary, Ministry of Textiles, GoI
Rajesh Prasad IFS (Retd.) Former Ambassador to the Netherlands
R.M. Premkumar IAS (Retd.) Former Chief Secretary, Govt. of Maharashtra
T.R. Raghunandan IAS (Retd.) Former Joint Secretary, Ministry of Panchayati Raj, GoI
N.K. Raghupathy IAS (Retd.) Former Chairman, Staff Selection Commission, GoI
V.P. Raja IAS (Retd.) Former Chairman, Maharashtra Electricity Regulatory Commission
C. Babu Rajeev IAS (Retd.) Former Secretary, GoI
Vijaya Latha Reddy IFS (Retd.) Former Deputy National Security Adviser, GoI
Aruna Roy IAS (Resigned)
A.K. Samanta IPS (Retd.) Former Director General of Police (Intelligence), Govt. of West Bengal
Deepak Sanan IAS (Retd.) Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
G. Sankaran IC&CES (Retd.) Former President, Customs, Excise and Gold (Control) Appellate Tribunal
S. Satyabhama IAS (Retd.) Former Chairperson, National Seeds Corporation, GoI
N.C. Saxena IAS (Retd.) Former Secretary, Planning Commission, GoI
Ardhendu Sen IAS (Retd.) Former Chief Secretary, Govt. of West Bengal
Abhijit Sengupta IAS (Retd.) Former Secretary, Ministry of Culture, GoI
Aftab Seth IFS (Retd.) Former Ambassador to Japan
Ashok Kumar Sharma IFoS (Retd.) Former MD, State Forest Development Corporation, Govt. of Gujarat
Ashok Kumar Sharma IFS (Retd.) Former Ambassador to Finland and Estonia
Navrekha Sharma IFS (Retd.) Former Ambassador to Indonesia
Raju Sharma IAS (Retd.) Former Member, Board of Revenue, Govt. of Uttar Pradesh
Tirlochan Singh IAS (Retd.) Former Secretary, National Commission for Minorities, GoI
Jawhar Sircar IAS (Retd.) Former Secretary, Ministry of Culture, GoI, & former CEO, Prasar Bharati
Thanksy Thekkekera IAS (Retd.) Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra
P.S.S. Thomas IAS (Retd.) Former Secretary General, National Human Rights Commission
Hindal Tyabji IAS (Retd.) Former Chief Secretary rank, Govt. of Jammu & Kashmir
Ramani Venkatesan IAS (Retd.) Former Director General, YASHADA, Govt. of Maharashtra