The Centre reduced Delhi back to a Union Territory and cannot escape its responsibility now

When people of Delhi are suffering from the Tsunami of Covid-19 and they need the government’s support to save their lives and livelihoods, the Modi government went ahead and implemented an unconstitutional transfer of power in the national capital against the popular mandate. The Ministry of Home Affairs (MHA) notified the enforcement of the Government of NCT of Delhi (Amendment) Act 2021 under which the Lieutenant Governor (LG) assumed the authority of the “Government of Delhi.”

Now, Delhi’s Chief Minister Arvind Kejriwal and his Cabinet colleagues will need the approval of the LG before taking any decision or announcing any policy or program for the welfare of the people of Delhi. In a practical sense, the Modi government has reduced Delhi to a Union Territory. This is nothing but a fraud with the people of Delhi who had voted in favour of a political party to run the administration in Delhi a few years ago in the hope of getting a full statehood for Delhi.

Sadly, the Central Government has used its parliamentary majority to butcher popular ambitions and snatched power from an elected government that has a huge mandate and Himalayan legislative support. Not only this, but this transfer of power also goes against the 2018 verdict of the Supreme Court that had given a free hand to the Kejriwal government to run the Delhi administration without knocking on the doors of the LG in every case. The amended NCT Act dilutes the Supreme Court’s judgment as well as the basic spirit of our parliamentary democracy that allows the popularly elected persons to run the government.

In a parliamentary democracy as enshrined under the Indian Constitution, it is the elected government that gets a mandate from the people to run the administration and it always remains responsible to the legislature that checks its commissions and omissions and holds the power to control it. The moment the legislature expresses its lack of trust in the government, it cannot remain in power. So, there is always an effective check on the functioning of an elected government in a parliamentary system. This is the beauty of parliamentary democracy.

Now, the LG has become very powerful without having any responsibility. As a nominee of the Central Government, the LG reports to the Union Home Minister and holds his office during the pleasure of the President who can remove him at any time if his political masters ask him to do so. Generally, a loyal retired Babu gets the opportunity to become the LG of some Union Territories including Delhi. The LG is not accountable to the people or their representatives in the legislature. He is Central Government’s man.

The amended NCT Act empowers him to delay the decisions of the elected government that would affect the working of the Kejriwal government adversely. In several cases, the Supreme Court has observed that the Governor or the LG cannot override the Chief Minister in parliamentary democracy but the Delhi LG has become the master of Chief Minister who will have to plead before him for getting approval of his policies and decisions.

The LG now has the power to refer the matter to the President if he does not agree with the Cabinet’s decisions or proposals. This head mastery of LG is against the constitutional scheme and judicial precedents. In 2018, the Supreme Court had categorically observed that the Delhi government does not need the concurrence of the LG before taking every decision. The LG was allowed to exercise his powers or refer cases to the President only in some specific cases as mentioned in the NCT Act.

“The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism”, the Supreme Court had observed regarding the exercise of power by the LG of Delhi in the case of Government of NCT of Delhi v. Union of India.

Admittedly, the amended NCT Act will disturb the power-sharing equations in Delhi badly. The Aam Aadmi Party is the ruling party in Delhi and the BJP is ruling at the Centre. The BJP was completely rejected by the people of Delhi in the last two Assembly elections.

Now it wants to strengthen its roots in Delhi by weakening the Kejriwal government by using legal tactics. The Kejriwal government has some genuine apprehensions of misuse of powers by the LG who acts on the instructions of his political masters sitting in the North/South Blocks. The Kejriwal government, it would appear, has a good case for challenging the constitutional validity of the amended NCT Act in the Supreme Court.

The people of Delhi had reposed faith in Kejriwal and his colleagues who are collectively responsible to the people’s representatives in the Assembly, not in the unelected LG. At a time when Delhi is severely suffering from the Covid crisis, thousands of people are dying every day without getting oxygen and beds, this change of guard does not send a good message to the people. Will the LG of Delhi be accessible to the people? Will the LG bear the responsibility for Covid management or mismanagement in Delhi? It looks as if the Modi government has launched an open jihad against the federal system and parliamentary democracy which are parts of the basic structure of the Constitution. May God save Indian federalism and parliamentary democracy!

(The writer is a lawyer at the Supreme Court. Views are personal)