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It seems the government of Delhi is all set to pass the Delhi Lokpal Bill later this month in the first ever public session of the Delhi Legislative Assembly. However, the sweeping powers which the bill seeks to provide the Delhi Lokpal/Lokayukta raises certain fundamental constitutional law issues which cannot be ignored and threatens the very legal validity of such a bill. What the government of the day seems to forget is that Delhi unfortunately is not a state but a union territory. To be more precise a Union Territory with a Legislative Assembly. This makes it a hybrid between a state which has all the powers that the constitution vests with a state and a Union Territory which is under the full administrative and legislative control of the central government and the Parliament. Thus the constitution gives Delhi a special status of National Capital Territory (NCT) of Delhi. Therefore any bill which the government seeks to pass has to be tested against mandate of the constitution and the question which will arise at the very outset is whether the Legislative Assembly of Delhi has the power to pass a bill which seeks to create a Lok Pal/Lokayukta which can suspend officers during investigation, recommend punishment amounting to dismissal, attach property and assets acquired by the corrupt officer and punish public servants with 6 months imprisonment or fine or both if he fails to comply with Lokpal/Lokayuktas orders?
Firstly, Article 239AA specifically states that Delhi shall have a legislative Assembly but then provides that the legislative Assembly shall not have the power to make laws in respect of Entries 1,2 and 18 of the state list. Entry 1 deals with Public Order while Entry 2 deals with Police matters and therefore it is abundantly clear that the Legislative Assembly does not have the power to make any law in relation to Public Order and/or Police. Therefore while every state in our federal structure has the power to make laws in connection with regulating and controlling Public Order and Police, which is clearly a state matter, such a power has specifically not been vested with the legislative Assembly of Delhi. The Delhi Lok Pal Bill which in essence creates a Lok Pal will have sweeping powers as stated above including the power to investigate, prosecute, suspend and attach properties of corrupt officials (a matter squarely falling within Entry 1 and Entry 2 of the state list) and will therefore have to withstand the rigours of Article 239 AA of the Constitution. The present Delhi Lokayukta and UpLokayukta Act, 1995 is saved from such scrutiny of constitutional law because it limits the role of the Lokayukta to inquiring into the allegations against public functionaries. The Delhi Lokpal bill is often justified on grounds that states like Uttrakhand have also passed a similar bill, which is robust and rigorous in its fight against corruption. As stated above one should not forget that unlike the situation in Delhi the Legislative Assembly of Uttrakhand is vested with all the powers provided to a state legislature under our constitution and therefore has the competence to make laws in connection with Police and Public Order issues as it deems fit.
Secondly, the Constitution also makes it crystal clear that Parliament retains all the powers to make laws with respect to any matter for a Union Territory. Thus not only the Parliament has the powers to make laws in respect of all matters which falls within the state list in relation to Delhi but in this particular case is the only legislative body which has the legislative competence to make laws in relation to matters listed in Entry 1 and Entry 2 of the state List (Public Order and Police). A bench of 9 judges of the Supreme Court of India therefore in New Delhi Municipal Corporation vs State of Punjab case stated that the subordinate status of the Delhi Legislature is too obvious to merit any emphasis.
Thirdly, The central Lokpal and Lokayuktas Act, 2013 already provides for a Lokpal for the Union and Lokayukta for States. One could argue that the Central Act occupies the field and therefore to that extent the laws of Parliament shall prevail. It would not be out of place to mention that the Constitution clearly provides that in the case of repugnancy, the law made by Parliament shall prevail, whether the Parliamentary law is earlier or later to the law made by the Delhi Legislative Assembly.
Lastly but not least, it looks like that the Honble Lieutenant Governors role will be crucial in the given facts and circumstances. The Constitution clearly provides that the Chief Minister and his council of ministers shall advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws. However, in case of difference of opinion between the Lieutenant Governor and the Ministers the Lieutenant Governor can refer the matter to the President of India for his consideration and act according to the President of Indias direction.
More about Abhimanyu Bhandari
Abhimanyu Bhandari is a lawyer and represents corporates and organisations on various environmental issues, white collar crime and Public interest litigation before the SC and various High Courts. He has also represented corporates and individuals before SC and various High Courts in the coal scam and the 2G scam. Hus corporate practice includes advising foreign companies on FDI issues and raising financing in India and overseas. He has worked as a lawyer in London, Singapore and Delhi after completing my legal education at Oxford.
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