OPEN STATEMENT – GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (AMENDMENT) ACT, 2021

9 April 2021

            We are a group of former civil servants of the All India Services and Central Services who have worked for decades with the Central and State Governments. As a group, we have no affiliation with any political party but are committed to the values and principles enshrined in the Constitution of India.

            In India’s democracy, we have adopted a republican structure and the Westminster model, in which the Governor is a titular head, acting on the aid and advice of the Council of Ministers. This constitutionally mandated structure has been repeatedly upheld and endorsed by the Honourable Supreme Court. That the legislature is supreme within its functional powers is a cardinal federal principle. Elected representatives link the will of the people with that of the Government, regardless of whether citizens live in a State or a Union Territory.

            The demand for full Statehood for Delhi has been consistently championed by all political parties, even though it is a National Capital Territory that may necessitate differential treatment. That led to the insertion of Article 239 AA into the Constitution of India, establishing an elected legislature for Delhi. Ambiguities in the interpretation of Article 239 AA have been clarified by the Honourable Supreme Court in its Constitution Bench judgment of 4th July 2018 (Govt. Of NCT of Delhi vs. Union of India)

            The opening lines of Article 239 AA states, “The Council of Ministers shall be collectively responsible to the Legislative Assembly.” Interpreting the scope of this provision, the Honourable Supreme Court ruled that “the Lieutenant Governor has not been entrusted with any independent decision making power. He has to either act on the ‘aid and advice’ of the Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him” (Para 277).

            However, the recently enacted GNCTD (Amendment) Act 2021, strikes at the root of these principles and renders null the democratic right of the citizens of Delhi.

            The Statements and Objectives of the Act states; “It further seeks to ensure that the Lieutenant Governor is necessarily granted an opportunity to exercise the power entrusted to him under proviso to clause (4) of article 239AA of the Constitution, in select category of cases and also to make rules in matters which incidentally encroach upon matters falling outside the purview of the Legislative Assembly.”

            First, a new sub-section has been added to Section 21 of the GNCTD Act, changing the definition of the ‘Government’ to mean the ‘Lieutenant Governor.’ This provision appears to have turned parliamentary democracy on its head.  

            Second, Section 33 of the act, which relates to “conduct of its business” states that the State legislature can enact rules “which shall not be inconsistent with the Rules of Procedure and Conduct of Business in the House of the People“. All State legislatures have the right to frame their own rules; indeed, the rules of the Delhi Assembly are nearly identical with those of the UP Assembly. Even the Lok Sabha and Rajya Sabha Rules are not identical.

            Third, Section 44 of the Act now states that before taking any executive action, the elected government shall have to take prior permission of the Lieutenant Governor, even in matters in which the Assembly has the right to make laws. This is in direct contravention of the Supreme Court’s judgment, where it stated; “A conjoint reading of clauses (3) (a) and (4) of Article 239AA, divulges that the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative Assembly and accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent list and all, but three excluded subjects, in the State List.” (para 277(XV)).

            By curtailing the powers of the Delhi Assembly and subordinating the executive power of the elected government to the Lieutenant Governor, Parliament has negated the provisions of Article 239 AA of the Constitution without amending the Constitution, but merely through amendments to the GNCTD Act. This is an unfortunate move and bad in law. It deprives Delhi’s citizens of the right to govern themselves in matters such as health, education, water, power, electric supply and roads. There is no justification to concentrate all powers of governance in the Union Government merely because Delhi is the country’s capital. This move will not only paralyse governance in Delhi, much to the detriment of public interest, but also have grave repercussions on how federal governance is carried out in India.

            We are deeply concerned that Parliament should pass a law which appears to make a mockery of constitutional provisions and their interpretation by the Supreme Court. We recognise that the same strategy of ramming through changes in law, with no consultation with the legislature or discussion with other political parties, was gone through when Article 370 was abrogated with respect to Jammu and Kashmir. We fear that a pattern is being established by which similar strategies could be adopted to destroy the federal principles on the basis of which India’s governance has been structured. The dangers of unilateral decision-making to establish a culture of unitary politics will put federal democracy in danger. This would violate the basic structure of the Constitution.

            We sincerely hope that the Honourable Supreme Court, taking note of the fact that this law violates their own order, will declare it unconstitutional and restore the status quo ante. 

SATYAMEVA JAYATE

(76 signatories, as below)

 S.P. AmbroseIAS (Retd.)Former Additional Secretary, Ministry of Shipping & Transport, GoI
 Anand ArniR&AW (Retd.)Former Special Secretary, Cabinet Secretariat, GoI
 J.L. BajajIAS (Retd.)Former Chairman, Administrative Reforms and Decentralisation Commission, Govt. of Uttar Pradesh
 G. BalachandhranIAS (Retd.)Former Additional Chief Secretary, Govt. of West Bengal
 Vappala BalachandranIPS (Retd.)Former Special Secretary, Cabinet Secretariat, GoI
 Gopalan BalagopalIAS (Retd.)Former Special Secretary, Govt. of West Bengal
 Chandrashekhar BalakrishnanIAS (Retd.)Former Secretary, Coal, GoI
 Rana BanerjiIAS (Retd.)Former Special Secretary, Cabinet Secretariat (R&AW), GoI
 Aurobindo BeheraIAS (Retd.)Former Member, Board of Revenue, Govt. of Odisha
 Madhu BhaduriIFS (Retd.)Former Ambassador to Portugal
 Ravi BudhirajaIAS (Retd.)Former Chairman, Jawaharlal Nehru Port Trust, GoI
 Sundar BurraIAS (Retd.)Former Secretary, Govt. of Maharashtra
 Rachel ChatterjeeIAS (Retd.)Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh
 Gurjit Singh CheemaIAS (Retd.)Former Financial Commissioner (Revenue), Govt. of Punjab
 Anna DaniIAS (Retd.)Former Additional Chief Secretary, Govt. of Maharashtra
 Vibha Puri DasIAS (Retd.)Former Secretary, Ministry of Tribal Affairs, GoI
 P.R. DasguptaIAS (Retd.)Former Chairman, Food Corporation of India, GoI
 Pradeep K. DebIAS (Retd.)Former Secretary, Deptt. Of Sports, GoI
 Nitin DesaiIES (Retd.)Former Secretary and Chief Economic Adviser, Ministry of Finance, GoI
 M.G. DevasahayamIAS (Retd.)Former Secretary, Govt. of Haryana
 Sushil DubeyIFS (Retd.)Former Ambassador to Sweden
 A.S. DulatIPS (Retd.)Former OSD on Kashmir, Prime Minister’s Office, GoI
 K.P. FabianIFS (Retd.)Former Ambassador to Italy
 Prabhu GhateIAS (Retd.)Former Addl. Director General, Department of Tourism, GoI
 Gourisankar GhoshIAS (Retd.)Former Mission Director, National Drinking Water Mission, GoI
 S.K. GuhaIAS (Retd.)Former Joint Secretary, Department of Women & Child Development, GoI
 H.S. GujralIFoS (Retd.)Former Principal Chief Conservator of Forests, Govt. of Punjab
 Meena GuptaIAS (Retd.)Former Secretary, Ministry of Environment & Forests, GoI
 Wajahat HabibullahIAS (Retd.)Former Secretary, GoI and former Chief Information Commissioner
 Siraj HussainIAS (Retd.)Former Secretary, Department of Agriculture, GoI
 Kamal JaswalIAS (Retd.)Former Secretary, Department of Information Technology, GoI
 Vinod C. KhannaIFS (Retd.)Former Additional Secretary, MEA, GoI
 Ajai KumarIFoS (Retd.)Former Director, Ministry of Agriculture, GoI
 Ish KumarIPS (Retd.)Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
 Sudhir KumarIAS (Retd.)Former Member, Central Administrative Tribunal
 P.K. LahiriIAS (Retd.)Former ED, Asian Development Bank & Former Revenue Secretary, GoI
 B.B. MahajanIAS (Retd.)Former Secretary, Deptt. of Food, GoI
 Harsh ManderIAS (Retd.)Govt. of Madhya Pradesh
 Amitabh MathurIPS (Retd.)Former Director, Aviation Research Centre and Former Special Secretary, Cabinet Secretariat, GoI
 Lalit MathurIAS (Retd.)Former Director General, National Institute of Rural Development, GoI
 Aditi MehtaIAS (Retd.)Former Additional Chief Secretary, Govt. of Rajasthan
 Avinash MohananeyIPS (Retd.)Former Director General of Police, Govt. of Sikkim
 Deb MukharjiIFS (Retd.)Former High Commissioner to Bangladesh and former Ambassador to Nepal
 Shiv Shankar MukherjeeIFS (Retd.)Former High Commissioner to the United Kingdom
 NagalsamyIA&AS (Retd.)Former Principal Accountant General, Tamil Nadu & Kerala
 Surendra NathIAS (Retd.)Former Member, Finance Commission, Govt. of Madhya Pradesh
 P. Joy OommenIAS (Retd.)Former Chief Secretary, Govt. of Chhattisgarh
 Amitabha PandeIAS (Retd.)Former Secretary, Inter-State Council, GoI
 Alok PertiIAS (Retd.)Former Secretary, Ministry of Coal, GoI
 R. PoornalingamIAS (Retd.)Former Secretary, Ministry of Textiles, GoI
 Rajesh PrasadIFS (Retd.)Former Ambassador to the Netherlands
 R.M. PremkumarIAS (Retd.)Former Chief Secretary, Govt. of Maharashtra
 T.R. RaghunandanIAS (Retd.)Former Joint Secretary, Ministry of Panchayati Raj, GoI
 N.K. RaghupathyIAS (Retd.)Former Chairman, Staff Selection Commission, GoI
 V.P. RajaIAS (Retd.)Former Chairman, Maharashtra Electricity Regulatory Commission
 C. Babu RajeevIAS (Retd.)Former Secretary, GoI
 Vijaya Latha ReddyIFS (Retd.)Former Deputy National Security Adviser, GoI  
 Aruna RoyIAS (Resigned) 
 A.K. SamantaIPS (Retd.)Former Director General of Police (Intelligence), Govt. of West Bengal
 Deepak SananIAS (Retd.)Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
 G. SankaranIC&CES (Retd.)Former President, Customs, Excise and Gold (Control) Appellate Tribunal 
 S. SatyabhamaIAS (Retd.)Former Chairperson, National Seeds Corporation, GoI
 N.C. SaxenaIAS (Retd.)Former Secretary, Planning Commission, GoI
 Ardhendu SenIAS (Retd.)Former Chief Secretary, Govt. of West Bengal
 Abhijit SenguptaIAS (Retd.)Former Secretary, Ministry of Culture, GoI
 Aftab SethIFS (Retd.)Former Ambassador to Japan
 Ashok Kumar SharmaIFoS (Retd.)Former MD, State Forest Development Corporation, Govt. of Gujarat
 Ashok Kumar SharmaIFS (Retd.)Former Ambassador to Finland and Estonia
 Navrekha SharmaIFS (Retd.)Former Ambassador to Indonesia
 Raju SharmaIAS (Retd.)Former Member, Board of Revenue, Govt. of Uttar Pradesh
 Tirlochan SinghIAS (Retd.)Former Secretary, National Commission for Minorities, GoI
 Jawhar Sircar  IAS (Retd.)  Former Secretary, Ministry of Culture, GoI, & former CEO, Prasar Bharati
 Thanksy ThekkekeraIAS (Retd.)Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra
 P.S.S. ThomasIAS (Retd.)Former Secretary General, National Human Rights Commission
 Hindal TyabjiIAS (Retd.)Former Chief Secretary rank, Govt. of Jammu & Kashmir
 Ramani VenkatesanIAS (Retd.)Former Director General, YASHADA, Govt. of Maharashtra

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