Jan Lokpal: missing the legal story

While the UPA government is arguing that the Lieutenant Governor’s consent is necessary for the introduction of the Bill, the AAP government wants to make this provision inapplicable. Both positions appear to be incorrect in law

Updated - May 18, 2016 07:58 am IST

Published - February 14, 2014 12:50 am IST

As controversy rages over whether the Aam Aadmi Party (AAP) government can introduce the Jan Lokpal Bill in the Delhi Assembly, there seems to be very little clarity on the legal position. The legal and political complexities require us to comprehend first the position that the National Capital Territory of Delhi (NCTD) occupies within the constitutional structure. Irrespective of whether one agrees with the content and approach of the Jan Lokpal Bill, the response to whether the Delhi government can introduce and pass the Bill in the Legislative Assembly must be independent of that. The arguments of both the AAP government, based on Mr. Soli Sorabjee’s opinion, and that of the Lieutenant-Governor, based on the advice of the Solicitor General of India, miss important aspects of this issue.

Constitutional framework The constitutional framework that governs the powers of the Delhi government to introduce this Bill lies at the heart of the issue. To properly appreciate the powers of the Delhi government in this regard, the constitutional provisions on the NCTD must be understood first. The extremely wide range of issues on which laws can be made is divided between the Union and the States in Schedule VII of the Constitution. While List I and List II in Schedule VII delineate the exclusive domains of Parliament and the State legislative Assemblies respectively, List III (Concurrent List) contains subjects over which both have jurisdiction. At the risk of not addressing several constitutional nuances, it would suffice to say that in case of conflict between the laws passed by Parliament and the State legislative Assemblies (despite each body having subject matter competence), the law made by Parliament takes precedence.

Under the current constitutional framework, the NCTD is not a full fledged State as is evident from Schedule I of the Constitution, where it is listed as a Union Territory (UT). Despite that, the NCTD occupies a unique position among the UTs in the Constitution. Article 246(4) gives the power to Parliament to make laws on all subjects for UTs, including those listed in the State List of Schedule VII. This widely stated power for Parliament operates without any further qualifications for all UTs except Puducherry and the NCTD. As far as the NCTD is concerned, Article 239-AA requires a legislative assembly to be formed and gives it the power to legislate on all subjects contained in the State List of Schedule VII except some fields that have no real relevance in this instance. Article 239-AA(3)(b) makes it amply clear that despite giving this power to the Delhi State Assembly, it does not derogate from the power of Parliament to make a law on any subject. It is evident from this constitutional design that the possibility of a conflict between the laws of Parliament and those of the Delhi Legislative Assembly is very real. The Constitution is alive to the possibility of this conflict and provides that the law of the Parliament shall prevail in such a situation. However, in case of such a conflict, the law passed by the Delhi Legislative Assembly would prevail if the President gave assent to such a law.

On consent As is evident, this position comes into play only once the Delhi Legislative Assembly passes a law. The current controversy is a prior one and concerns the very introduction of the Bill in the Delhi Legislative Assembly. The Constitution places no restrictions on the introduction of any Bill in the Delhi Legislative Assembly and the Government of NCT of Delhi Act, 1991 and the Rules issued therein, supplement the constitutional provisions and govern the matter. As is evident from the statement issued by the Lieutenant-Governor, the argument that the consent of the Lieutenant-Governor is required before the Bill can even be introduced in the Assembly relies on s.22(3) of the Government of NCTD Act, 1991. The requirement under s.22(3) is that any Bill which involves expenditure from the Consolidated Fund of the Capital cannot be passed by the Legislative Assembly unless it has been recommended for consideration of the Legislative Assembly by the Lieutenant-Governor. Mr. Soli Sorabjee’s argument that this provision applies only to money Bills is not supported by the text of the provision. The provision is applicable to all Bills, including ordinary Bills, that require funds from the Consolidated Fund of the Capital for their implementation.

An entire aspect of this issue has been missed in the discussion so far. There has been very little discussion about the manner in which the Lieutenant-Governor must exercise this power. On the one hand, the AAP government wants to make this provision inapplicable while the United Progressive Alliance government seems to be arguing that the Lieutenant-Governor’s consent is necessarily required for the introduction of the Bill. Both these positions appear to be incorrect in law. There are similar provisions to s.22(3) of the NCTD Act in the Constitution. Articles 117(3) and 207(3) place a similar requirement on Parliament and State legislatures. Under Art.117(3), the recommendation of the President is required before Parliament can pass a Bill that would involve expenditure from the Consolidated Fund of India. Similarly, Article 207(3) requires similar action from the Governor for a State Assembly to pass a law when expenses from the Consolidated Fund of a State are involved. However, this does not mean that the President and the Governor can stop the passing of a Bill by Parliament or a State Assembly. That would not be possible because the President and Governor are bound to act on the aid and advice of the Council of Ministers as required under Articles 74 and 163 of the Constitution. There is a provision similar to Articles 74 and 163 that governs the relationship between the Lieutenant-Governor of Delhi and the Council of Ministers of the NCTD. Article 239-AA(4) states that the Council of Ministers of the NCTD shall aid and advise the Lieutenant-Governor. The Lieutenant-Governor, while seeking to rely on s.22(3), cannot seek the advice of the Central government and must act in accordance with the aid and advice of the Council of Ministers. While there might be other provisions concerning the administration of the NCTD that require the Lieutenant-Governor to consult the Central government, s.22(3) is certainly not one of them.

There is a proviso to Article 239-AA(4) that allows the Lieutenant-Governor to refer a difference of opinion between the Lieutenant-Governor and the Council of Ministers on any matter to the President. However, the Lieutenant-Governor, by explicitly stating that this is not a disagreement about the contents of the Bill, has foreclosed this option. Given the Lieutenant-Governor’s reliance on s.22(3) of the NCTD Act, the only difference of opinion that could arise is why the expenditure from the Consolidated Fund of the Capital is not called for in this instance. And it is very difficult to see the Lieutenant-Governor biting that bullet.

Rule’s background The Transaction of Business of the Government of NCTD Rules, 1993 have also been repeatedly invoked and in particular Rule 55(1). Mr. Soli Sorabjee has even stated that this rule suffers from “serious legal infirmities.” We do not believe that this is the case and Rule 55(1) and that it is tune with the constitutional framework designed to resolve the conflict between the laws of Parliament and those enacted by the Delhi Legislative Assembly. Rule 55(1) only requires the Lieutenant-Governor to refer all legislative proposals, if passed, that could conflict with laws of Parliament. Rule 55(1) nowhere requires the assent of the President for the introduction or passage of such a Bill by the Delhi Legislative Assembly. However, as stated earlier, once such a Bill is passed and it conflicts with a law made by Parliament, the only way for the Delhi Assembly’s law to operate as per the proviso to Article 239-AA(3)(c) is with the consent of the President.

Rule 55 has an interesting political history. Introduced by an order of the Ministry of Home Affairs under the Bharatiya Janata Party-led National Democratic Alliance government in August 2002, the then Congress Chief Minister Sheila Dikshit had vehemently opposed it by moving a motion in the Delhi Legislative Assembly on September 11, 2002. A part of that motion stated that her government was asking the House to condemn “this decision of the Home Ministry taken without consulting the popularly elected Delhi Government.” And, further, that the House should view the order “as a total violation of all democratic traditions and harmonious relations between the Centre and States.” It should perhaps not come as a surprise that the records of the Delhi Assembly indicate that the BJP legislators walked out in protest against this motion introduced by the Chief Minister. While the AAP government continues to raise critical challenges to the constitutional sharing of power between the Union and the Government of NCTD, it must not take away from the serious flaws that populate the draft Jan Lokpal Bill.

(Anup Surendranath teaches constitutional law and Rishika Sahgal is a student at National Law University, Delhi.)

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