Delhi Government – constitutional woes?

Lately, there has been a lot of discussion on what the Delhi Government and its legislative arm can do and what it cannot. This article is an attempt to understand this precise question in the context of the constitution and various other legal provisions.

Background

In 1991, an amendment was made to the Constitution that provided special status to the Union territory of Delhi. It redesignated Delhi (previously entirely under the Central Government) as the National Capital Territory of Delhi, along with creating legislative assembly and a council of ministers for Delhi. Thus, while creating space for decentralized legislation making, the amendment withheld with it the features of a Union territory that gives eventual control to the Parliament/ Union Government.

What are the powers of Delhi’s legislative assembly?

The assembly can make laws on all the matters of the State List and the Concurrent List except three matters of the State List – public order, police and land. However, this power of the legislative assembly can be superseded by the powers of Parliament, which can make laws on any of the three lists in the Seventh Schedule. This legislative setup is different from the rest of the states in the country where the Parliament’s legislative competence is limited to the Union list and the Concurrent list.

In addition, if any provision of a law made by the Legislative Assembly with respect to any matter is in contradiction to any law made by Parliament, the former would be held to be void and it is the law made by the Parliament that will prevail. However, if such a law passed by the Legislative Assembly receives assent of the President, then the law will prevail in Delhi. Parliament also has powers to amend, vary or repeal any law passed by Delhi’s legislative assembly. Again, this institutional mechanism is unique to Delhi, given that it is country’s capital and hence requires numbers of checks and balances.

In this context, what are the procedural requirements to get Jan Lokpal Bill passed by Delhi’s legislative government?

Lieutenant Governor’s views

Section 55(1)a of the Transaction of Business of the Government of NCTD Rules require Lieutenant Governor to refer to the Central Government every legislative proposal which if passed is required to be reserved for the consideration of the President. As mentioned above, the Jan Lokpal bill will require an assent from the President as it is in contradiction with the law passed by the Parliament. Jan Lokpal Bill would also require resources from Consolidated Fund of the Capital and hence as per Section 55(1)c of the abovementioned rules, would require to be referred to the Central Government. While it is not clear whether referring a bill shall tantamount to approval by the Central Government, the procedure established by law is very clear.

Kejriwal’s views

Kejriwal in his letter to the Lieutenant General brings forth an important issue:

“The Constitution decides the powers of Delhi Assembly. Can the Union Home Ministry put check on those powers by issuing an order? If one has to take the Centre’s permission for passing each law, then what is the necessity of conducting elections in Delhi? This is a direct attack on the autonomy of Delhi people and Delhi assembly”

While the law does require that the Delhi Government should refer the Lokpal Bill to the Central Government, the moot question is why such rules exist at first place? Apart from laws relating to law and order, police and land, why should there be any requirement to consult Central Government for laws relating to governance and service delivery in Delhi? Delhi Government has been in revenue surplus since years with fiscal deficit being far below than the national average. This is despite the fact that Delhi doesn’t receive any funds from Finance Commission to fund its non-plan expenditure. In this context, shouldn’t the elected government be at liberty to use the Consolidated Fund of Capital as per its electoral mandate?

The debate between the Governor and the Chief Minister has been reduced to discussing the procedural requirements. The issues raised by Kejriwal need to be looked into with a perspective of providing a much more autonomous governance system in the capital. Our CM seems to have diagnosed the problem correctly but the solution provided by him appears to be ignorant of country’s legal system. Adopting a confrontationist attitude with the Governor and not following the constitutional provisions will only portray AAP’s understanding of country’s polity in bad light.

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