Centre’s Attempt to Give More Powers to Delhi LG May Face Constitutional Challenges

AAP has termed the move a murder of democracy and an attempt by the BJP to rule Delhi through the backdoor; legal expert Sanjay Hegde says issue of constitutional morality is at stake.

New Delhi: The Central government has defended its decision to amend the Government of NCT of Delhi Act to give more powers to the Lieutenant Governor (LG), despite strong opposition from the elected Aam Aadmi Party (AAP) government in the state. An amendment bill has been listed for consideration and passage during the current budget session of parliament, but the decision is expected to face constitutional and legal hurdles ahead.

Despite the claim that this amendment would result in better governance and reduce conflicts between the LG, who is appointed by the Centre, and the chief minister, who is elected by the people, concerns are being raised around the move. What is also being called into question is its need, especially when the Supreme Court had in 2018 through a detailed order delineated the powers of both the high offices in Delhi.

While the Centre may be well within its right to bring the amendment, the move would not be above judicial scrutiny.

‘Constitutional morality and governance at stake’

Senior Supreme Court advocate Sanjay Hegde said: “The point is that India is a quasi federal constitution. The Centre does have powers to create states and alter their boundaries. What they did with Jammu and Kashmir, they are attempting a similar thing in limiting the powers of the government of NCT. The NCT is not a full state and it is more than a Union Territory.”

As for the latest amendment Bill, he added that “the Central government is now passing a legislation amending its earlier NCT Act. While I do see constitutional challenges coming up, they would take their own time to resolve. In principle, even after the Supreme Court judgment there is nothing which prevents the government from changing the law.”

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“But,” Hegde said, “to use legislative power like this, just because you can, also raises questions of constitutional governance and constitutional morality. A city of two crore people can’t necessarily be deprived of statehood or be given a rather watered down version of statehood.”

On the impact of the Supreme Court ruling of 2018 on the present amendment, he said, the court then dealt with the law as it existed then. “Courts deal with the legislation as it then exists. If courts find a mistake or read down the law to mean something, the legislature can always step in thereafter. Whether they (Central government) are within their constitutional rights and whether they have followed the Constitution or not are all things which can be seen when the final Act is passed.”

Amendment to provide timelines for legislative proposals

The amendment would through new provisions seek to give more powers on some matters to the L-G that fell outside the purview of the legislative assembly and which the L-G was earlier required to reserve for the consideration of the president.

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 through the proposed amendments seeks to prescribe time-lines for the elected government in Delhi to send legislative and administrative proposals to the L-G for his opinion. According to the list of Bills for the budget session, this Bill “proposes to amend the Government of National Capital Territory of Delhi Act, 1991, in the context of judgment dated 14.02.2019 of Hon’ble Supreme Court (Division bench) in Civil Appeal No 2357 of 2017 and other connected matters”.

Earlier, the law provided that the L-G may refer a particular matter to the president if he holds a contrarian on the subject to that of the council of ministers. And till such time, the president’s decision is pending, the L-G is empowered to take a decision, if the matter is urgent in nature.

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However, these provisions changed after the July 2018 judgment of the Supreme Court, which ruled that the elected Delhi government need not seek the ‘concurrence’ of LG on every issue of day-to-day governance, but need only inform him.

The apex court had then also held that the LG cannot “interfere in every decision of the Delhi government” and that “the lieutenant governor must work harmoniously with the elected government. The LG is the administrative head but can’t act as an obstructionist.”

On the issue of services, the bench was divided and so the matter was referred to a three-judge bench, where the hearing has not concluded.

The Centre is now learnt to be keen on empowering the LG further by providing through the amendment that the elected government will have to send legislative proposals at least 15 days in advance to the LG to seek his opinion.

‘A murder of democracy,’ says AAP

The issue has once again rankled the AAP government which recently termed the proposed amendments “a murder of constitutional democracy”. Reacting strongly to the move, Delhi deputy chief minister Manish Sisodia charged that it was an attempt “to snatch power of Delhi’s elected government and give it to the Centre-appointed lieutenant governor”.

He also alleged that “BJP wants to govern Delhi through backdoor as people chose not to elect them in three consecutive elections”.