Bill giving primacy to Delhi LG shows hollowness of Modi’s claims of co-operative federalism

Amidst much uproar from the Opposition benches, the Rajya Sabha on the late hours of Wednesday passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021. Legislators from Opposition parties walked out of the house at the time of voting after the government refused to send the Bill for the consideration of a Select Committee. This Bill, which will fortify the Centre’s grip over Delhi, had been passed by the Lok Sabha on March 22 and will soon become law after Presidential assent.

The Bill ostensibly seeks to “give effect to the interpretation” made by the Supreme Court on the constitutional provisions regarding the structure of governance in Delhi and “clarify” that the expression “Government” shall mean the Lieutenant Governor.

In reality, it 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. This Bill challenges the fundamental underpinnings and principles of democratic government and federalism in India.

Undermining democratic government

The Bill undermines the authority of the democratically elected government of Delhi in several ways. Firstly, it states that the expression “government” referred to in any law made by the Legislative Assembly shall mean the Lieutenant Governor of the National Capital Territory of Delhi. Such an interpretation is truly bizarre and betrays all principles of democracy and representative government.

It destroys the very need to have a Council of Ministers and transmogrifies the role of the Lieutenant Governor beyond what is envisaged in the Constitution and in the 2018 Supreme Court Judgment.

The Constitution Bench had held that the status of the Lieutenant Governor is that of “an administrator, in a limited sense” and that the Lieutenant Governor has not been “entrusted with any independent decision-making power”. Even if we accept that the Lieutenant Governor is not a mere ceremonial head, it is hard to fathom how in a parliamentary system the term “government” can singularly mean an unelected nominee of the Centre.

Secondly, it states that on matters specified by the Lieutenant Governor, the Council of Ministers must obtain the permission of the Lieutenant Governor before taking any executive decision. This provision directly violates the 2018 Supreme Court judgment. Interpreting Article 239AA (4) of the Constitution, which states that the Council of Ministers shall “aid and advise the Lieutenant Governor”, the Supreme Court held that the Lieutenant Governor is bound by such aid and advice on all matters in the State List of the Constitution, other than the excluded subjects of land, police and public order.

It held that “requiring prior concurrence with the Lieutenant Governor would negate the ideals of representative governance and democracy”. Hence, while the Lieutenant Governor should be informed of the decisions by the Council of Ministers, his/her concurrence is not necessary. The Bill not only makes the Delhi government beholden to the diktats of the Centre, but will also make daily administration cumbersome as all decisions will require the prior approval of the Lieutenant Governor.

Restricting rule-making powers

Thirdly, the Bill imposes multiple restrictions on the rule-making powers of the Legislative Assembly of Delhi. It prohibits the Assembly from making any rule that enables it to examine the day-to-do matters of administration or conduct any inquiry into administrative decisions. It also requires the rules made by the Legislative Assembly of Delhi to be consistent with the rules of Conduct of Business in the Lok Sabha.

Such restrictions on the rule-making powers of the Legislative Assembly are an unprecedented assault on the inherent powers of a legislature. Restricting a Legislative Assembly from conducting inquiries into administrative decisions of the government destroys the very purpose of the legislature, which is to hold the executive to account. The administrative actions of the Executive cannot be above legislative scrutiny in a parliamentary government.

The Bill’s requirement that the rules of conduct of business to be consistent with rules of the Lok Sabha also has no basis in the Constitution or parliamentary conventions. Such restrictions destroy the inherent privilege of each legislature to frame rules regarding its proceedings on its own volition.

Hence, through multiple provisions, the Bill completely enfeebles both the Legislative Assembly and the Council of Ministers of the National Capital Territory of Delhi. It overturns the Supreme Court judgment though subterfuge and destroys the essence of the Constitution (69th Amendment) Act, 1991 that provided Delhi a special status as a national capital territory with a legislative assembly.

Whither federalism?

The passage of this Bill casts ominous signs for the future of federalism in India. While Prime Minister Narendra Modi often rhetorically invokes the idea of “co-operative federalism”, such decisions by the Union government subverts federalism and centralises political authority. Beyond the façade, federalism in India is now being hollowed out by incremental steps that dismantles the autonomy of state governments, especially those governed by opposition parties.

These steps range from passing laws, like the farm bills, that limit states’ authority to legislate on agriculture, to withholding Goods and Services Tax compensation to states, to using the office of the governor to topple opposition-led state governments after effecting political defections. The starkest example of the decimation of federalism was the abrogation of the special status of Jammu and Kashmir under Article 370 and converting a full-fledged state into a Union Territory.

Many political observers, especially on social media, are now pointing out how the chief minister of Delhi had then tweeted in support of the decisions of the Centre regarding Jammu and Kashmir. However, while the hypocrisy and insensitivity towards Kashmir is indeed worrying, deriving any schadenfreude for what is happening to the Delhi government is unfortunate.

As India witnesses a brazen assault on its foundational values of constitutionalism, democracy, and federalism, it is important to oppose and collectively resist these decisions on principle. Challenging the belligerent centralising agenda of the Union government requires a new politics of federalism, one that genuinely embraces the principles behind this idea and articulates it assertively in mass politics.

Mathew Idiculla is a legal and policy consultant based in Bengaluru and a visiting faculty at Azim Premji University