A group of former civil servants on Friday said the controversial Government of National Capital Territory of Delhi (Amendment) Act, 2021, nullifies the democratic rights of the citizens of Delhi. The law gives overreaching powers to the lieutenant governor by effectively wresting control away from the city’s elected government.
In a statement released by the Constitutional Conduct Group, 76 signatories said there was no justification for the Narendra Modi government to “concentrate all powers of governance” merely because Delhi is India’s capital.
“It deprives Delhi’s citizens of the right to govern themselves in matters such as health, education, water, power, electric supply and roads,” the statement added. “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.”
The Act, which significantly expands the powers of the Centre-appointed lieutenant governor of Delhi, at the cost of the elected Assembly, was passed by the Lok Sabha on March 22 and the Rajya Sabha on March 24. The Opposition, including the Aam Aadmi Party and the Congress, had walked out of the Upper House at the time of voting after the government refused to send the Bill for the consideration of a Select Committee. President Ram Nath Kovind gave his assent to the Bill on March 28.
“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,” the signatories said. “This is an unfortunate move and bad in law.”
Delhi is a Union Territory with a legislature and it came into being in 1991 under Article 239 AA of the Constitution. As per the Act, the Legislative Assembly of Delhi has the power to make laws in all matters except public order, police and land.
The signatories of the statement include former Chief Information Commissioner of India Wajahat Habibullah, former Secretary to Maharashtra government Sundar Burra, former Ambassador to Portugal Madhu Bhaduri, former Additional Chief Secretary of West Bengal G Balachandhran and other former high-ranking bureaucrats.
The former bureaucrats said that they were concerned that the Parliament passed a law to make “mockery of constitutional provisions” and its interpretation by the Supreme Court regarding the structure of governance in Delhi.
The signatories pointed out that no consultation was held with the legislature or political parties before the passage of the Bill.
They noted that similarly, the Centre had revoked the special status of Jammu and Kashmir under Article 370 of the Indian Constitution, and bifurcated it into Union Territories in a similar manner in August 2019.
“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 statement added. “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.”
The former officers hoped that the Supreme Court takes note that the law violates its own order. They also said the court should declare the Act unconstitutional and restore the status quo ante.
The Act completely nullifies the 2018 judgment of the five-judge Constitution Bench of Supreme Court in Government of National Capital Territory of Delhi v. Union of India that laid down the primacy of the elected government in Delhi. The order stated that there was no room either for anarchy or absolutism in a democracy, adding that the “real authority to take decisions lies in the elected government”.
According to the legislation, the “government” in Delhi means the “lieutenant governor” and the city government will now have to seek his opinion before taking any executive action.
The government had claimed that amendments would lead to transparency and clarity in governance, but the Arvind Kejriwal-led Aam Aadmi Party had said that reforms were against the federal structure of India’s democracy.
Delhi has an elected Assembly, which has been dominated by the Aam Aadmi Party for six years now. The party managed to get consecutive landslide victories in 2015 and 2020, with the Bharatiya Janata Party in a distant second place both times.
This has meant, however, that AAP’s tenure since 2015 has been marked by constant tussles between the government and the Centre, primarily through the office of the lieutenant governor. In addition to that, the tensions have continued as the Centre controls land, public order and the Delhi Police.