“At the bottom of all tributes paid to democracy is the little man [and woman], walking into a little booth, with a little pencil, making a little cross on a little bit of paper [now EVMs] — no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” These were the memorable words of British Prime Minister Winston Churchill, which the Indian Supreme Court endorsed. The court added that “the little large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little brief authority”.
Contents of the Bill
If the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, which has been passed by the Lok Sabha, is enacted, the little large Indians of the national capital may as well keep off the polling booths, for their vote will be rendered meaningless. The popular government they have elected will not be able to act on matters which the Constitution vests in it the competence to do. This Bill is an extraordinary legislative misadventure. It states the opposite of what the apex court said when it interpreted Article 239AA of the Constitution. Strangely, however, the Bill proclaims that it seeks to give effect to the interpretation.
First, the Bill says the expression “Government” referred to in any law to be made by the Legislative Assembly in Delhi shall mean the “Lieutenant Governor”. Second, it vests in the Lieutenant Governor the power to refuse assent and reserve a Bill passed by the Legislative Assembly for the consideration of the President, if, in his opinion, the Bill incidentally covers any of the matters which fall outside the purview of the Assembly’s powers. Third, and most drastically, the Bill says before taking any executive action, the opinion of the Lieutenant Governor shall be obtained on such matters as may be specified.
The Supreme Court has the last word on the interpretation of the Constitution. That constitutional provision (Article 239AA) remains unamended. Any legislation which speaks to the contrary would be plainly illegal. The basis of the judgment remaining the same, the attempt in the Bill is to legislatively overrule a judgment. That would be an exercise of judicial power, which Parliament does not possess. All that the Bill does is to regurgitate the rebuffed arguments of the Central government by the court. The court stated in Govt. of NCT of Delhi v. Union of India (2018): “The respondents... highlight that by the constitutional amendment, introduction of the 1991 Act and the Rules of Business, the Lieutenant Governor functions as the administrator in the truest sense... They would submit that though Delhi has been conferred a special status, yet that does not bring any new incarnation. The submission, as we perceive, destroys the fundamental marrows of the conception, namely special status. It, in fact, adorns the Lieutenant Governor with certain attributes and seeks to convey that NCT of Delhi remains where it was.”
The court was loath to centralise the power in the Lieutenant Governor and went only thus far to say that the Council of Ministers should keep the Lieutenant Governor informed of its decisions. This would enable any decision on which there was a difference of opinion between the Lieutenant Governor and the government to be referred to the President. It said the power to refer to the President was an exception; that the Lieutenant Governor need not in a mechanical manner refer every decision; and most important, he will be guided by the concept of constitutional morality and the question of prior concurrence was out of question, since that would set at nought the ideals of representative governance and democracy.
The idea was twofold. The earlier judgment in Samsher Singh v. State of Punjab (1974) had ruled against the deification of any individual like the Lieutenant Governor, for it had warned that elections would then become but “Dead Sea fruits”. Second, the voice of the citizen could not go unrecognised. “This is only possible if the agency enacting and enforcing the law comprises of the elected representatives chosen by the free will of the citizens,” thundered the court in Govt. of NCT of Delhi v. Union of India. The elected representatives and the Council of Ministers, being accountable to the voters of Delhi, must have the appropriate powers so that they can perform their functions effectively and efficiently, the court emphasised. Any other interpretation, felt the court, would nullify the concepts of pragmatic federalism and collaborative federalism.
Administrative chaos
Sidestepping the law laid down, and in a manner as to herald administrative chaos, by these thoughtless amendments, the Lieutenant Governor has been made synonymous with the Government. The government, a product of the beautiful democratic process, is replaced by one individual, a nominee of the Central government, who will occupy office at its pleasure. Not stopping there, the Bill vests in that individual enormous powers to refer all and sundry matters to the President. Now it is so well settled in constitutional law that what is to be seen is the pith and substance and not incidental aspects, while testing the competence of a legislature. That is why the referral power was to be an exceptional power and a confrontational attitude was to be abhorred. The further mandate in the Bill that before taking any executive action, the opinion of the Lieutenant Governor needs to be taken is in the teeth of the court’s interpretation, which only wanted the Lieutenant Governor to be kept informed.
The majestic institutions that adorn Lutyens’ Delhi and the embassies of foreign nations that punctuate it symbolically convey a lot. Delhi cannot afford administrative breakdowns. To the outside world, Delhi is India’s face. It will reflect very poorly on the Central government if administration comes to a standstill in the capital. In any case, the little large Indian voter in Delhi cannot be hoodwinked. The Prime Minister should step in and immediately abort the Bill in order to uphold the principles of participative democracy, cooperative federalism, collective responsibility to the House and, above all, constitutional morality, which we deeply cherish.
K.V. Viswanathan is a Senior Advocate, Supreme Court, who also advises the Delhi government