Editorial 1: Power where it’s due
Context:
- Latest landmark verdict of the apex court in favour of Delhi government over controlling the postings, transfers, etc. of the bureaucracy has reinstated some powers to the Delhi government and makes it a significant milestone in the chequered history of relations between the Union Government and the elected government of Delhi.
Timeline of relations between Delhi and Centre:
- In 2017 Delhi HC verdict ruled that for administration purposes of the NCT, the Lieutenant Governor (LG) is not bound by the aid and advice of the Council of Ministers in every matter.
- An appeal led to the landmark 2018 Supreme Court verdict by a five-judge Bench laid down broad parameters for the governance of Delhi and limited the LG’s jurisdiction to matters involving land, police, and public order, stating that for all other matters, he must act with the aid and advice of the Council of Ministers.
- According to the Article 239AA of the Indian constitution, that although the government had to keep him/her informed of its decisions, Delhi's lieutenant governor did not have any independent decision-making powers.
- LG had to follow the "aid and advice" of the chief minister-led council of ministers of the Government of Delhi on matters which the Delhi Legislative Assembly could legislate on, viz., State List and the Concurrent List barring 'police, 'public order' and 'land'.
- After SC’s 2019 split verdict on the issue of control over services (Entry 41 of the State List of Seventh Schedule), the matter was referred to a larger bench, which led to the present verdict.
- Meanwhile, Through the highly controversial GNCTD Amendment Act, 2021, the Union Government mandated primacy to the centrally appointed Lieutenant Governor and made the elected government subsidiary.
- Government of NCT of Delhi Amendment Act 2021:
- The term ‘government’ mentioned in any law enacted by the legislative assembly of Delhi shall mean the LG. The Act defines ‘government’ as the LG.
- The Act provides discretionary powers to the LG even in matters where the Legislative Assembly is empowered to make laws.
- An additional clause added to Section 44 of the 1991 Act makes it mandatory for the government to obtain the opinion of the LG on all matters before any executive action can be taken, ensuring accountability. This means that the state government or cabinet would need to seek the LG’s opinion before implementing any decision.
- The amendment also says that the “Legislative Assembly shall not make any rule to enable itself to consider the matters of the day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions”.
Key Principles and details of the 2023 Verdict:
The Apex court held that Delhi government has legislative and executive powers over administration of services (including the Indian Administrative Services) i.e. transfers and postings of officials within the jurisdiction of NCT of Delhi except for public order, police and land, and the Lieutenant Governor(LG) shall exercise power under the administrative role.
The Union government retains the power as to which IAS officer gets posted to the national capital and for how long. Furthermore, appointment of the Chief Secretary, Home department secretary, Delhi Development Authority (DDA) Vice-Chairperson and Commissioner of New Delhi Municipal Corporation (NDMC) will remain under the Union Government through the LG.
Various principles enunciated by the court include:
- Unique status of Delhi in the Constitution: Article 239AA adopts asymmetric federal model where NCT of Delhi remains a Union Territory yet makes it a federal entity.
- Principle of Accountability and Collective Responsibility of the elected government: It means Control over officers ensures Triple Chain of Collective Responsibility i.e. Bureaucracy accountable to the Elected Government which in turn is responsible to the Legislature.
- Principle of Democracy and: It implies that real power rests with the elected government, subject to the provisions of the Constitution.
- Principle of Federalism: It entails that there will be dual polity having two governments having respective powers.
- LG can exercise discretion only in
- matters beyond the jurisdiction of the Delhi Assembly and where the President has delegated the powers and functions to the LG
- matters which by law require him to act in his/her discretion
- Matters where s/he is exercising judicial and quasi-judicial functions.
Basic details about Government of NCT of Delhi
- Delhi, officially the National Capital Territory (NCT) of Delhi, is a city and a union territory of India containing New Delhi, the capital of India.
- As a first-level administrative division, the National Capital Territory of Delhi has its own Legislative Assembly, Lieutenant Governor, the council of ministers, and Chief Minister. Members of the legislative assembly are directly elected from territorial constituencies in the NCT.
- The Government of India and the Government of National Capital Territory of Delhi jointly administer New Delhi, where both bodies are located.
- There are 70 assembly constituencies and seven Lok Sabha (Indian parliament's lower house) constituencies in Delhi.
Key Articles of the Constitution
- Article 145(3): The minimum number of Judges who must sit to decide any case involving a substantial question of law concerning the interpretation of the Constitution shall be five.
- Article 239 AA: Under Part VIII (Union Territories), it deals with special provisions for the NCT of Delhi, its legislature, elected government, relationship with the LG and their powers and functions, etc.
Editorial 2: No Toppling Games
Context:
- Latest Supreme Court verdict on the role of Governor and Speaker in Maharashtra held that the Governor was not justified in calling the Uddhav Thackeray government in 2022, for a floor test, yet the government cannot be reinstated as no floor test was conducted and voluntary resignation was offered.
Key details of the verdict:
- Role of Governor:
- The Governor did not have enough objective material evidence because the resolution letter by MLAs did not express their wish to exit the government. Therefore, his asking for a floor test was illegal.
- Further, Summoning of the House by the Governor under Article 174 of the Constitution must be exercised on the aid and advice of the Council of Ministers. Exercising it without the aid is illegal and unconstitutional.
- Dissent among the members of the party cannot be resolved through floor test.
- Role of Speaker:
- The Speaker must only recognise the whip appointed by the political party according to the Tenth Schedule of the Constitution.
- Therefore, the action of Speaker was illegal where he recognised the whip based on the resolution of the dissenting faction within the party, without ascertaining whether it is the decision of the political party, not just the legislature party.
- Also, the Speaker must decide the disqualification petitions ‘within a reasonable period.’ The disqualification petition of 16 rebel MLAs of Maharashtra Assembly is still pending before the Speaker, since last year.
- Role of Election Commission:
- Election Commission along with the Speaker is concurrently empowered to adjudicate on the petitions before them under the Tenth Schedule on ascertaining the identity of the political party.
Why are the rebel MLAs still in the House:
- In Nabam Rebia judgment 2016, the apex court had decided that an assembly speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking his removal is pending before the House.
- The judgment had helped the faction led by Mr Shinde, allowing the rebel MLAs to remain in the assembly.
Real Shiv Sena according to verdict of the Election Commission:
- The Election Commission of India (ECI) has allotted the party name 'Shiv Sena' and its bow and arrow symbol to the Eknath Shinde faction. The Election Commission decision is based on the Election Symbols (Reservation and Allotment) Order, 1968 and considered several aspects.
- Key reasons behind the verdict include
- The ECI considered the aims and objects of the party constitution. Eknath Shinde faction claimed that the Uddhav faction, by forming a coalition with parties of different ideologies, deviated from the “aims and objects” of the party which included the core point of disagreement and disappointment in the rank and file of the party.
- The amendment and the process of amendment to the party constitution made in 2018 by Uddhav Thackeray should have been communicated to the Election Commission, despite being asked for it. The party's new constitution is non-compliant with the registration conditions submitted to the Election Commission by Shiv Sena in 1989.
- The Election Commission has directed Eknath Shinde to amend the 2018 constitution of the party in line with section 29 A of the Representation of People’s Act, 1951 and extant guidelines issued by the commission on registration of political parties inter–alia conforming to internal democracy.
- In the circumstances of the case, the ECI was once again forced to rely upon the 'test of the majority' in the legislative wing which was found to be with the Shinde faction.
- The 40 MLAs supporting Ekanth Shinde garnered 76 per cent of votes polled in favour of 55 winning MLAs in the 2019 State Assembly polls.
- The 13 MPs supporting Eknath Shinde garnered 73 per cent of votes polled in favour of 18 MPs in the 2019 Lok Sabha elections.
Basic Constitutional Provisions:
Tenth Schedule:
- It was inserted in the Constitution in 1985 by the 52nd Constitutional Amendment Act. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature. The law applies to both Parliament and state assemblies.
Disqualification under Tenth Schedule:
- If a member of a House belonging to a political party:
- Voluntarily gives up the membership of his political party, or
- Votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
- If an independent candidate joins a political party after the election.
- If a nominated member joins a party six months after he becomes a member of the legislature.
Exceptions under the Law:
- If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
- If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.
Decision of the Presiding Officer is Subject to Judicial Review:
- In the Kihoto Hollohan case (1993), the Supreme Court declared that while deciding a question under the 10th Schedule, the presiding officer should function as a tribunal.
- Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of mala fides, perversity, etc.
Time limit within which the Presiding Officer decides:
- There is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification.
- The courts also can intervene only after the officer has made a decision, and so the only option for the petitioner is to wait until the decision is made.
- There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
- The SC in a recent judgement held that unless there are “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months.