Saturday, December 3, 2022

Love’s Labor Lost

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The controversial bill of Arvind Kejriwal finally did him in. Unable to deliver on his promise to get it passed in the Delhi assembly, he resigned. But why was the Jan Lokpal bill so crucial to Kejriwal and what does the Constitution say about tabling it?

By Devender Singh

Way back in 1987, a government committee had recommended that Delhi should continue to be a union territory, but have an assembly and a council of ministers. Thereafter, Parliament enacted the 69th Constitution (Amendment) Act, and inserted Article 239AA, which envisaged the formation of NCT (National Capital Territory) of Delhi to be administered by the lieutenant governor (LG).

So what happens in case of a difference of opinion in legislative matters between the Delhi government and the LG? The 69th amendment clearly states that the LG will then have to refer all such matters and differences to the president. The NCT Act states that the assembly is barred from making laws dealing with public order, police, land, offenses against laws in the state list, etc., as these are the exclusive domain of a state legislature.

What happens in case of a difference of opinion in legislative matters between the Delhi government and the lieutenant governor? The 69th Constitution (Amendment) Act clearly states that the lieutenant governor will then have to refer it to the president.

As for financial bills, prior permission of the LG is mandatory. This is similar to states taking prior permission of the governor under Article 207 for introduction of such a bill in the assembly. Prior approval is also needed in the following cases:

  •  Imposition, abolition, remission, alteration or regulation of any tax.
  • Amendment of law with respect to any financial obligation undertaken or to be undertaken by the government of the capital.
  • Appropriation of money out of the Consolidated Fund of Capital (CFC).
  • Declaring any expenditure as public expenditure charged on the CFC or increasing the amount of any such expenditure.
  • Receipt of money on account of the CFC or custody or issue of such money.

It is also mandatory that if a bill involves expenditure from the CFC, it shall not be passed by the assembly unless the LG has consented to it. The act confers powers on the LG to refer a bill, if it is not a money one, for consideration of the president if it derogates the powers of the High Court.

19 Arvind Kejriwal PAC meeting

 GREAT GAMBLE  (L-R) AAP leaders Manish Sisodia, Arvind Kejriwal and Kumar Vishwas at the political affairs committee meeting on January 19

In the field of concurrent legislation, any law passed by the assembly found to be repugnant to the law proposed by Parliament shall be void unless assented to by the President. Lokpal being a concurrent field of legislation, presidential assent is a must. Failing this, the subsequent law passed by the assembly will become void.

Laws have also been clearly laid down for transaction of business in NCT Delhi. According to Rule 55 of The Transaction of  Business of the Government of National Capital Territory of Delhi Rules, 1993 (TBR), the LG shall refer to the Union government every legislative proposal which attracts S/20 of the NCT Act. It is also incumbent on the LG to refer to appropriate central ministries all important cases, which, inter alia, affect or are likely to affect the peace and tranquility of Delhi.

A government bill can be introduced in the assembly provided it has the sanction from the president or the LG. The speaker has the authority to disallow the introduction of a bill for non-compliance of Business Rules. Ordinarily, the introduction of a bill is not opposed.

Coming to the Lokpal and Lokayuktas Act 2013, it provides that every state shall establish a Lokayukta to deal with complaints relating to corruption against certain public functionaries within a period of one year from the date of commencement of the central act. The Delhi government is well within its prerogative to enact a new Lokayukta Act by amending or repealing the extant one with similar or more stringent powers.

Some legal luminaries have described Rule 55 of the TBR as ultra vires the constitution as it requires prior approval of the union government. Though the TBR cannot bind the assembly, the NCT Act and the TBR bind the government. The government can introduce a bill in either house of Parliament strictly in compliance with the provisions of Article 117 of the constitution. It takes the prior consent of the president in case of financial bills, regardless of the fact that presidential assent has to be sought once the legislation is approved by both the houses of Parliament.

For legislative proposals initiated by private members, i.e., those other than ministers, prior approval of the president is invariably sought in case the bill attracts the provisions of Article 117. However, the government does not have the same liberty to introduce its own legislation for a mere debate without the intent to have it passed.

Regarding the salary and allowances of the Lokayukta, such a bill cannot be introduced in the assembly except on the recommendation of the LG. The LG, under the circumstances outlined above, is not bound by the aid and advice of the council of ministers, but by the express provisions of the Constitution and the law.

In hindsight, it was unfair to think that the NCT government would be denied approval to enact a new law which is mandated by the Lokpal and Lokayukta Act 2013. After all, the Uttarakhand government under Vijay Bahuguna had replaced the Lokayukta Act of the earlier BC Khanduri government.

Now it is for the people to judge whether it is just and fair to obstruct or impede enactment of a law intended to cleanse public life.

Lokpal and Lokayuktas Act 2013
  •  It provides that every state shall establish a Lokayukta
  • The Lokayukta will deal with complaints relating to corruption against certain public functionaries
  • It should be done within a period of one year from the date of commencement of the central act
  • Delhi government is well within its prerogative to enact a new Lokayukta Act
  • It can be done by amending or repealing the existing one with similar or more stringent powers


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