Democratic Government by One Person

Who holds the reins in Delhi? The source of power, of authority, to govern and rule the people of Delhi appears to have hit another stumbling block, with Parliament passing the Government of National Capital Territory (NCT) of Delhi (Amendment) Act, 2021. Amidst an opposition walkout, the bill, passed through a voice vote in the Rajya Sabha, amends the Government of NCT of Delhi Act, 1991, which is the framework through which the Delhi legislative assembly and the Government of Delhi functions. The amendments include redefining the term “government” to mean “lieutenant governor” (LG) with respect to any law passed by the assembly. Further, they allow the assembly to make rules to regulate the procedure and conduct of business in the assembly only if they are consistent with those in the Lok Sabha. Also, it curtails the powers of the assembly to conduct inquiries into any administrative decisions or consider matters relating to the day-to-day functioning of the Delhi government. All executive action by the Delhi government must now be done in the name of the LG, and in certain matters, as specified by the LG, it is incumbent on the council of ministers to take the advice of the LG. An elected government stands condensed into the person of the LG, and its business is now completely subjugated to the will of the LG. The elected government, in simple terms, seems irrelevant to the matters of governance in Delhi. Any hopes for full statehood seem to have become more distant. The outcry in opposition circles is not surprising, but the moment brings with it a touch of irony considering that the Bharatiya Janata Party had in the past spearheaded the push for full statehood for Delhi.

The tussle between the elected government and the LG has been ongoing for some time. In 2016, a Delhi High Court ruling held that the LG is the administrative head and need not seek counsel from the council of ministers. However, subsequently, in 2017, a constitution bench of the Supreme Court clearly stated that the “LG is an administrative head in the limited sense and is not a governor. He is bound by the aid and advise of NCT Government in areas other than those exempted.” The Supreme Court sought to outline the terrain of constitutional legitimacy of government, and “purposively interpreted” the relevant Articles 239AA and 239AB of the Constitution that outline “special provisions for Delhi.” In reading the Constitution, the Court recognised two very important aspects that come to define this conflict. First, it referred to the contested provision of Section 239AA (4), which states that in case of a difference of opinion, “the Lieutenant Governor in any case” may refer the matter to the President (inter alia, the union government). The Supreme Court judgment dealt with this ambiguity of executive power by clearly establishing that “executive power of the Government of NCT of Delhi is coterminous with the legislative power of the Delhi Legislative Assembly,” thereby laying bare any assumption of overriding authority of the union in matters relating to Delhi, except in the administration of land, police and law and order. Second, in employing a recourse to constitutional morality, the judgment sought to restore the kernel of federalism and democracy by reiterating that the public in its collective will elect the assembly, which forms the cabinet, that will function with a “collective responsibility” unhindered by any bias or prejudice. Anything that hinders that collective responsibility is sought to be done away with. In other words, restoring the responsibility of governance on the Delhi assembly, according to the Supreme Court, was to restore faith in the people’s will.