Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Nakul Rai Khurana, a law student at Jindal Global Law School.
On August 8, in its so-called “monsoon session”, the Rajya Sabha (the upper house of the Indian parliament) passed the National Capital Territory of Delhi (Amendment) Bill, 2023. This comes after the bill was passed in the lower house of the parliament on August 3. According to the government, the bill aims to restore and maintain the democratic and administrative balance in the governance of the capital.
The Ordinance notably goes against a Supreme Court of India judgement delivered on May 11 2023 holding that the Delhi Government does have the power to make laws over administrative services. The 5-judge bench comprising of Chief Justice of India DY Chandrachud (‘CJI’), unanimously upheld the federal structure of governance wherein civil servants must be held accountable to the electorate i.e., the citizens. The bench highlighted the sui generis status of the Delhi capital territory, as opposed to other Union territories of the country, conferred by Article 239AA of the Constitution. The pertinent article, 239AA, confers the status of a Union territory to Delhi. However, it empowers it with state-like traits.
As per the CJI, the asymmetric model that exists between the Central government and the local government of Delhi is a broader reflection of the constitutional principles, as opposed to a narrow interpretation. Such a model recognises that it is very difficult to categorise a homogenous class of Union Territories in India, owing to the different circumstances they have acceded to in post-colonialism.
Principally, as per the Constitution, the citizens elect the representatives which form the council of ministers with a Chief Minister at its head, that aid and advice the Lieutenant Governor (LG). The real power to make decisions earlier lay with the elected representatives while bureaucrats such as the Lieutenant Governor, appointed by the Centre, only exercised formal powers, which have now been significantly altered by the bill.
In what many see as draconian legislation, the bill moved by the Centre now readjusts the constitutional machinery in place. It empowers the LG to control Group ‘A’ administrative services in Delhi, including matters relating to transfers, appointments, and postings of government officers. The LG can now hold meetings without the Chief Minister regarding matters of governance. If a decision is taken by the Council of Ministers, the LG can overrule it.
Although the parliamentary Opposition deems it to be unconstitutional, the Centre’s justification for the same rests on the supposed inept governance of the State Government and its representatives. What was specifically pointed out was the involvement of former deputy Chief Minister, Manish Sisodia, who awaits trial and is denied bail, due to his alleged involvement in corrupt activities regarding the implementation of Delhi’s liquor excise policy.
Senior Leader of Congress, P Chidambaram, on the merits of the bill based on Constitutional principles, argued
“People will know government (the Centre) is attempting to take away powers of the elected representatives and giving it to the bureaucrats.”
He further opined– “What are we doing today, we are breaking the Constitutional machinery.”
The sheer amount of opposition to the bill can be symbolised by the fact that former Prime Minister of India and MP (‘Minister of Parliament’), Manmohan Singh, was brought in a wheelchair whilst in ill health, to express his displeasure against the controversial bill. Despite profound endeavours by the opposition, the bill was approved with 131 members in favour, 102 against. The defeat was rather seen as a psychological victory since a heavily contested and fierce debate in the parliament which lasted 8 hours showed the resilience of the Opposition to this unprecedented dilution of federal powers.
The attack on a rather proud federalist structure which ensures equal division of powers between the Union and the States, at least de facto in nature will have significant political repercussions in the near future. However, what must be recognised is the strong contest by the coalition-led opposition, despite the defeat, pertinent for a healthy democracy. Despite considerable criticism towards the opposition for being splintered in the face of the strongest majority government in decades, resilience and morale continues to hold firm, as the 2024 Indian general elections approach. This resilience will perhaps be the defining factor in the amount of success or failure the I.N.D.I.A (Indian National Developmental Inclusive Alliance) coalition of opposition parties will achieve in the elections next year.
