Another War Front Opens: Kejriwal Challenges Centre’s Bill to Curtail Delhi Govt's Power

Delhi Chief Minister Arvind Kejriwal on Monday reacted sharply after Minister of State for Home, G Kishan Reddy, introduced the Government of NCT (Amendment) Bill, 2021 in Parliament. Condemning the move by the central government, the Chief Minister tweeted, “After being rejected by ppl of Del (8 seats in Assembly, 0 in MCD bypolls), BJP seeks to drastically curtail powers of elected govt thro a Bill in LS today. Bill is contrary to Constitution Bench judgement. We strongly condemn BJP’s unconstitutional n anti-democracy move”.

In a successive tweet, Kejriwal elaborated on the aspects of the bill that he termed is against the July 4, 2018 Constitution Bench judgment of the Supreme Court. The landmark verdict on the tussle of power between the elected government and the Lieutenant Governor’s office had ruled that except in cases of land, police and public order, the elected government has the power to make decisions while informing the Lieutenant Governor. The verdict was silent on services and that case is still before the Supreme Court.

This is against 4.7.18 Constitution Bench judgement which said that files will not be sent to LG, the elected govt will take all decisions and send a copy of decision to LG’.

Later, Deputy Chief Minister Manish Sisodia launched a sharp attack on the central government and the BJP. Echoing Kejriwal, Sisodia said, “Central government has bought an amendment bill to change the Government of NCT Delhi Act. These amendments that are being brought by the BJP government are against the Constitution and against democracy”.

Sisodia added that once they said, “the bill becomes operational, the ‘government’ would mean ‘Lieutenant Governor’, there would be no point of the elected government of Delhi and that this was a very dangerous amendment whether viewed from the prism of democracy or the Constitution.”

The other significant proposed amendment that Sisodia highlighted was that all files on decisions taken by the council of ministers would have to be sent to the Lieutenant Governor. Sisodia called the amendments as ‘ autocratic ‘.

“What is the point of having an elected government if all the files will have to be sent to the Lieutenant Governor, why hold elections, why make a show of being democratic, if elected government, elected ministers and elected chief ministers have no powers to take decision and if government cones to mean LG, why have ministers, chief ministers, a legislative Assembly, why hold elections, why make a show of being a democracy and being democratic?” Sisodia asked repeatedly.

The Deputy Chief Minister then delved into the history of the conflict over the tussle of power between the elected government and the Lieutenant Governor’s office since 2015 when Arvind Kejriwal became the chief minister for the second time.

Reading out from the Constitution of India, Sisodia referred to Article 239 AA, “There shall be a legislative assembly for the national capital of Delhi, this assembly shall have the power to make law on whole or any part of the subject of the national capital territory with respect to any of the matters enumerated in the state list or in the concurrent list except matters with respect to entries 1, 2 and 18 of state list (public order, police and land)”. Sisodia also underlined that the Constitution provided for “a council of ministers of not more than 10% of the total number of members in the assembly with the chief minister at the head to aid and advise the LG”.

On the issue of difference of opinion on any matter between the elected government and the Lieutenant Governor, the LG can refer it to the President, Sisodia pointed out.

The reason for extensively quoting from the Constitution, Sisodia said that when in 2015 the AAP government was formed and had begun work with honesty and on people’s issues, and the BJP was left with just three seats, the BJP used the back door through Lieutenant Governor ‘s office to claim repeatedly that the Lieutenant Governor was the ‘Government’.

Referring to the then LG, Najeeb Jung, Sisodia said that the former autocratically claimed, “I am the government” and the elected government can do nothing.

Sisodia recalled that the AAP government had moved the Delhi High Court on the delineation of powers between the LG and the elected government and the High Court had given a verdict that went against the elected government following which the AAP government then moved the Supreme Court where the matter was placed before a Constitution Bench.

The Constitution Bench had delivered its verdict and for the first time interpreted Article 239 AA 9 of the Constitution on July 4, 2018. On a day that could see the beginning of a new battle between the LG and the elected government, Sisodia quoted extensively from the verdict to reiterate his argument, “Para 277 says clearly the Constitution being the supreme instrument envisages the concept of constitutional governance, ours is a parliamentary form of government guided by principle of collective responsibility… the cabinet owes a duty towards the legislature for every action taken in any of the ministries and every individual minister is responsible for every act of the ministry”.

“The Constitution has mandated a federal balance wherein independence of certain required degrees is assured to the state governments as opposed to centralism. A balanced federal structure mandates that the Union does not usurp all powers and the states enjoy freedom without unsolicited interference from the central government with respect to the matter which exclusively falls within their domain”, Sisodia quoted from the Constitution bench verdict underlining the top court’s emphasis on the spirit of federalism.

As per the 69th Amendment to the Constitution, Delhi has a representative form of government. The SC verdict, Sisodia said, “The said provision intends to provide for the capital a directly elected legislative assembly which shall have legislative powers over matters falling in the state list and the concurrent list barring those expected and amended upon the LG to act upon the aid and advice of the council of ministers”.

Sisodia reiterated that apart from three subjects ,land police and public order, the legislative assembly and the council of ministers have the power to take decisions.

The Deputy CM cited again on the landmark verdict to emphasize that the elected government can take decisions in all matters except three, “The meaning of aid and advise employed in Article 239 AA has to be construed to mean that the Lieutenant Governor of NCT of Delhi bound by aid and advice of council of ministers and this position holds true so long as the Lieutenant Governor does not exercise power to differ, the Lieutenant Governor has not been entrusted with any decision making power”.

Sisodia then said that contrary to this verdict, amendments that have been brought in means that for each and every decision the elected government will have to take the approval of the LG, all files will have to be sent, LG is the government.

“The words ‘any matter’ employed in the proviso of 239 AA cannot be inferred to mean ‘every matter’ and must be exercised under ‘exceptional’ circumstances, the SC had said and Sisodia quoted this to argue that the amendments now would mean that each file will have to be sent to the LG instead of the position now whereby the LG has to be kept informed of the decisions of council of ministers and his concurrence was not necessary.”

The Deputy CM argued that the amendments that are being brought implies reversing the SC verdict which means that it is opposite of what is mandated in the Constitution.

Sisodia said the government would consider all legal options. Sisodia also thanked Omar Badullah for the latter’s support even though the AAP had not extended the same courtesy to Jammu and Kashmir.

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