Democracy is government of the individuals, by the individuals and for the individuals, mentioned Abraham Lincoln. That remains the simplest and most complete definition of democracy. At the centre of the government are the individuals. Representative democracy is only a matter of comfort when the numbers are substantial.
India is a federal state. Delhi is the National Capital of India. It is acknowledged that the government of Delhi has to be diverse from the governments of states but, if that government need to be a democratic government, it need to place the individuals at the centre of the government.
The Supreme Court, as the final interpreter and arbiter of the Constitution, mentioned in State (NCT of Dehi) v Union of India: (2018) 8 SCC 501: “The exercise of constituent power is meant to confer democratic, societal and political powers on the citizens who reside within the National Capital Territory of Delhi that has been granted a special status.” The Court quoted with approval Jaganmohan Reddy J who had mentioned in Kesavananda Bharati that democratic type of government is portion of the simple structure of the Constitution.
Constituent Power
The powers and functions of the Delhi government had been lastly settled by the workout of the constituent energy of Parliament. The Constitution of India was amended in 1991 and Article 239AA was inserted to provide “Special provisions with respect to Delhi”. The Statement of Objects and Reasons produced it clear that “Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man.”
Article 239AA employed words and phrases that had acquired a which means in each and every democratic nation. Among them had been ‘direct election from territorial constituencies’, ‘the Legislative Assembly shall have the power to make laws… with respect to any of the matters enumerated in the State List or in the Concurrent List’ and, most importantly, ‘There shall be a Council of Ministers …with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions….’ The Government of the National Territory Act, 1991, was produced beneath Article 239AA to give impact to the provisions contained in that Article.
The Dog and the Tail
In the final 20 years, there had been situations when the tail (LG) attempted to wag the dog (the council of ministers), but such attempts had been place down with a firm hand. Attitudes changed right after 2014. The BJP government in Delhi could not tolerate a non-BJP government in Delhi. In distinct, the Prime Minister could not tolerate a Chief Minister sharing the political space in Delhi. Hence, a determined work was produced to resurrect the extended-buried controversy of who specifically has the genuine energy in the Delhi government.
The try was thwarted by the Supreme Court, in State (NCT of Delhi) v Union of India. On July 4, 2018, the Supreme Court declared that the “meaning of ‘aid and advise’ employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of the NCT of Delhi is bound by the aid and advice of the Council of Ministers”.
Mr Modi is a man of considerable ego (as I suspect all prime ministers are) and does not give up his pursuit of incorrect ambitions. He bided his time and chose to strike when the nation was focused on essential elections in 4 states and one Union Territory. He could not touch Article 239AA since the NDA does not have a two-thirds majority in each Houses of Parliament so, he chose the lesser choice of amending the Government of the National Capital Territory Act, 1991. Mocking the Supreme Court, the Statement of Objects and Reasons mentioned that the amendment Bill was brought forward “in order to give effect to the interpretation made by the Hon’ble Supreme Court”! In truth, the Bill is a clumsy try to overrule the judgement of the Supreme Court.
Patently Unconstitutional
The Bill amends the law by stipulating that the expression ‘Government’ shall imply the Lieutenant Governor. Thus, by definition, the tail is the dog and the dog is the tail! The Bill also delivers that “before taking any executive action… to exercise powers of Government… the opinion of the Lieutenant Governor shall be obtained on all such matters as may be specified….” By legislative legerdemain, the Modi government has installed its Viceroy in Delhi!
Mr Arvind Kejriwal and his ministers have been lowered to footmen to fetch and carry for the Viceroy.
Mr Kejriwal need to have recognized that this day was coming when, in a different constitutional coup, Jammu & Kashmir was dismembered and lowered to two Union Territories. Yet, Mr Kejriwal supported that assault on democracy in the name of ‘nationalism’. Today, it is his day of reckoning and humiliation. Nevertheless, my sympathies are with him if he chooses to fight the Modi government.
Democracy in India is diminished each and every day. The globe has taken note of the reality that India is only ‘partly free’. The target of the BJP is to establish one-party rule, an more than-sized and rubber-stamping Parliament, a compliant judiciary, an officially sponsored media, obedient corporates, and a subservient individuals who will be satisfied with material progress. That India will be no diverse from China. It is deja vu 1935, the Government of India Act, 1935, and ‘Go Back Simon’.