August 7, 2023
Sukhendu Sekhar Ray’s speech on The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 in the Rajya Sabha
Sir, I thank you very much for this opportunity. I am not going to make a political speech, because the subject relates to a very important issue, the National Capital Territory of Delhi. Sir, there is no sound from this microphone. I cannot shout. There is no volume. No volume in this. … (Interruptions)… I cannot shout, Sir. There is no feedback; no feedback to my ears! …(Interruptions)…
Sir, as I have stated, I am not going to make any political speech. My submissions will be confined to the parameters of this Bill.
Sir, on 19th May this year, the hon. President of India promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which negates the Constitution Bench Judgment of the Supreme Court dated 11th May, 2023, that brought Services under the GNCTD. There could be some symbolism in the Ordinance being promulgated in the middle of the night — as already stated by some of my colleagues — just a few hours after the Supreme Court closed for summer vacation! But, I am not on that. In the meanwhile, the Ordinance has been challenged in the Supreme Court and the matter has since been referred to a Constitution Bench. During the pendency of the matter before the Constitution Bench of the highest court of the land, the Government has introduced this Bill to repeal the Ordinance and to further amend the GNCT Act, 1991. I wonder as to whether heavens would have fallen had the Government waited for the outcome of the Constitution Bench before which the Ordinance is still pending. What is the urgency involved in the matter? What is the urgency?There is now a whisper about the urgency of the Bill in the Statement of Objects and Reasons, which I have received just now, after introduction of the Bill. It says that the above said judgement dated 11th May, 2023, posed certain challenges in the efficient administration of the Government of NCT of Delhi which needed to be addressed through appropriate legal intervention.According to me, this is a stigma on the highest forum of our Judiciary, which must be deprecated by all the conscious citizens of this country.Sir, in the year 2021, in the matter of Madras Bar Association, the hon. Supreme Court had inter alia observed, and I quote one line, “A legislation can be declared as unconstitutional if it is in violation of the principle of separation of powers, the rule of law, and Article 14 of the Constitution, that is, arbitrariness.” Therefore, once there is such a judgement, which was delivered in 2001, the Government ought to have abided by that judgement of Supreme Court, which is, otherwise, the requirement under the Constitution. I will come to that later on.The question is whether the Legislative Assembly of Delhi has powers over all matters in List II, except the matters in Entries 1, 2 and 18, that is, public order, police, and land. In apparent defiance of the 11th May judgement, this Bill seeks to amend the GNCTD Act for abridgement of the powers conferred upon the GNCT legislation by the Constitution because the Entry No. 41 is sought to be inserted through this Bill. So, 3 will be 4, as rightly pointed out by our Senior Counsel, Dr. Abhishek Manu Singhvi. Now, when a Constitution Bench, comprising five Judges of Supreme Court declares and/ or interprets Article 239AA 3(a) of the Constitution, the same is binding upon all courts and authorities in India in terms of Articles 141 and 144 respectively. Neither Article 239AA (3)(a), nor Articles 141 and 144 can be negated without a Constitution (Amendment) Bill. I repeat, without a Constitution (Amendment) Bill, this cannot be done. If the Government wins, this legislation will be declared null and void. As a student of law, I understand it will be done. And, if the Government, in future, brings a Constitution (Amendment) Bill, that will also be hit by the Principle of Separation of Powers and Federalism, which are the basic structures of the Constitution, which has been held by the Supreme Court right from the Keshavananda Bharati case till the Minerva Mills Case.This Bill seeks to render the GNCTD Assembly, or for that matter, the Delhi Government, virtually toothless and ineffective insofar as the Services and the Service Commission are concerned. Even a Constitution (Amendment) Bill on this count shall be unconstitutional ab initio, as it will negate federalism and the Principle of Separation of Powers, as has already been stated by me.Now, let me have a look at the Bill once. Possibly, that will be the final point, as I have already exhausted seven minutes. Come to Part IV(A). It states about the provisions relating to the maintenance of democratic and administrative balance in the governance of the National Capital Territory of Delhi. What a brilliant drafting ! To maintain a balance! The original Act had come into being in 1991. And, now, we are in 2023. So, for the last 33 years, there had been no balance. That is why, all of a sudden, the Khumbakarna has arisen from the deep sleep to maintain a balance.Interestingly, an authority has been proposed to be created. Which authority? As has already been stated by the other hon. Members, in that, there will be Chief Minister, Chief Secretary and the Home Secretary. (Time-bell rings) Sir, please give me two minutes. It is a very interesting Bill. And, whatever will be recommended by the Chief Minister, if it is not accepted by the two bureaucrats, then also, it will be passed and the Lt. Governor will accept it. So, the Chief Minister will be, I should say, without any authority. He does not have any authority. The bureaucrats will prevail upon him. In democracy, the will of the people is supreme. As the saying in Bangla goes, *”The truth of man is the highest truth; there is no other truth higher than that.” But, here, where the will of the people which has been reflected through election, in a duly elected or constitutionally elected Government, the Chief Minister, has no power; the bureaucrats will overrule the recommendations by the Chief Minister. This is a draconian Bill. This is against all the spirits of the Constitution. Every citizen of this country should oppose this Bill not only inside Parliament but even outside Parliament. Finally, with your kind permission, Sir, I would like to quote a line from a judgement of our former Chief Justice, Shri Y.V. Chandrachud, the father of the present hon. Chief Justice of India, and I quote: “Parliament cannot under Article 368 expand its amending powers so as to acquire for itself the right to repeal, or abrogate the Constitution or to destroy its basic and essential features.” Here is a case where the basic features are being destroyed. And, Sir, according to me, and according to my Party, the All India Trinamool Congress, this Government seeks to insert Entry 41 of the List II into Article 231AA (3)(a), thereby expanding the scope of excepted matters. The Bill, virtually, stands against the heaven of freedom into which Shri Rabindra Nath Tagore wanted his country to awake, as the Bill reflects the abyss of unrestricted powers to ensure emergence of a banana republic. Thank you.
