One of India's leading constitutional experts, Subhash Kashyap, tells Aditi Phadnis that in the case of Delhi, the Lieutenant-Governor is endowed constitutionally with most of the powers to run the capital. Edited excerpts:
The Union government is in a logjam in Parliament because it does not have a majority in the Rajya Sabha. What is the way out?
First, I think we should understand the position of the two Houses under the Constitution of India. The House of the people is directly elected. The Council of Ministers is responsible to the house of the people, and this is mentioned specifically in the Constitution, meaning thereby that the responsibility is not to the Rajya Sabha, not to anyone else, but to the house of the people.
The Council of States comprises representative of the states. It is the state legislatures that elect them. A no-confidence motion cannot be moved in the Rajya Sabha because the government is responsible only to the Lok Sabha; adjournment motions that have a content of censure of the government cannot be moved in the Rajya Sabha; the role of the Rajya Sabha is very limited in money Bills - in the Budget, the Rajya Sabha can express its views but cannot deny supplies or stop grants in aid. Unlike some other countries, the Rajya Sabha is not a revising chamber: as Bills can be introduced in either house, both houses can be revising chambers. Every Bill, other than money Bills, has to be passed by both the houses.
With the exception of these areas, the powers and status of the two houses are equal.
But the composition and nature of the Rajya Sabha has been changing...
Lately, there have been some problems in the Rajya Sabha, which go against the concept and thinking of the founding fathers. Because it is the Chamber of States, for political reasons, parties began using the Rajya Sabha for accommodating senior politicians who had lost Lok Sabha elections or who could not be elected in their own states. So, the situation came to such a pass that a person who had never stayed or even visited a particular state managed to get elected from there - in many cases, without even knowing the language, culture or people of the state. In one case, a Rajya Sabha member made it to India's highest office, occupied it for 10 years without being able to speak the language of the state he represented. Kuldip Nayar took the matter up to the Supreme Court. The Supreme Court, in my opinion, wrongly upheld these elections. So, now the position is that a member of the Rajya Sabha can be elected from anywhere in India, just like the Lok Sabha. This goes against the basic philosophy of the Constitution.
That apart, except for money Bills and constitution amendment Bills, they can be taken up in a joint sitting of the two houses if one house passes it and the other house does not pass it for six months; or rejects it. But there can be a situation where it does not reject it, does not pass it but passes it with some amendments. In that case, it has to come back to the originating house. If there is a final breakdown between the two houses, then a joint sitting can be called.
In a joint sitting, voting is by simple majority of those present and voting. Since the Lok Sabha is the larger house, about twice the size of the Rajya Sabha, the wishes of the Lok Sabha members have a greater chance of prevailing.
One question that is being asked (which at this stage, is hypothetical) is whether a joint sitting can take up more than one Bill. So, can the government pile up all the Bills where the Rajya Sabha is coming in the way, call a joint sitting and get all of them passed?
Can it be done?
I think it can be done, constitutionally there is no bar. But I believe things will work out. What is needed is better political and floor-management techniques.
What is your view on the Delhi stand-off?
Under constitutionalism, no entity in a democracy can be supreme. The Constitution says very categorically - although I find people saying on television that Delhi is not a Union Territory or that it is half a state - that Delhi is a full Union Territory.
And a Union Territory, by definition, is centrally administered. The President administers it through the administrator appointed by him - in the case of Delhi, the Constitution says he would be called Lieutenant-Governor (LG).
The Council of Ministers conceded to Delhi in response to popular demand, is only to aid and advice the LG. Aid and advice is not binding. This extends to all matters, including those subjects that have been 'given' to the elected government.
Excluding police, public order and land, the elected Delhi government can pass laws in various other areas. According to Article 73 of the Constitution, executive power is co-extensive with legislative power. So, the elected Delhi government does not have executive powers in these three areas, which are reserved for the Union government - by corollary, the LG.
There is the state list. On these items, the Delhi government can take decisions. But even here, the LG is an essential part of the legislature. The Delhi legislature includes the LG. He has to give assent to Bills after the legislature passes it: he can withhold assent; he can keep the Bill for as long as he likes; he can send it to the Centre; he can send it to the President for his consideration and so on.
Moreover, the Union Parliament does not have the right to legislate on items in the state list. In the case of Delhi, Parliament can legislate on any subject on any list relating to Delhi - and the law passed by Parliament will prevail. Flowing from that, the executive also has all the powers, including over the items on the state list. That is the actual technical position.
Of course, the political reality is: there is an Assembly. This was in response to a long-drawn agitation for statehood. So, to compromise, and if I may be blunt, to satisfy local leaders and give them some paraphernalia, this was conceded. But independent powers were not conceded for good reason. Delhi is the capital for India. And if it has powers that are available to the states, then it will have powers over the land occupied by all the embassies, the Supreme Court, the central Cabinet, the Rashtrapati Bhavan, unless there is a list of exclusions. And then you would have to have two governments in Delhi, one for Lutyens Delhi and so on. It is not feasible.
The net result is, a former chief minister (CM) who was CM for many years (not Sheila Dikshit) told a bureaucrat: "I want to do this". The bureaucrat told him it was not possible under the rules. He then asked: "What about this?" The bureaucrat said he did not have the authority. The question-and-answer session went on and the bureaucrat's answer was "Sir, there are serious limitations". Finally, the CM said: "Why don't you bring me a shovel. All I seem to be good for is weeding the lawn, so I will confine myself to doing that". But the man continued to be chief minister for several years and there was no clash: he realised his position and the limitations. Dikshit also had differences with the LG. But she circumvented them and she, too, did a lot for Delhi.
The President of India, according to the Constitution, has to act on the aid and advice of the Council of Ministers. If the Governor and the LG are an extrapolation of the position of President, why is there a disparity?
During the emergency, the 42nd Amendment of the Constitution made it mandatory for the President to be bound by the advice of the Council of Ministers. But that was never extended to Governors or the LG.
But despite this, in one case, a Bill that was passed by both the houses was not given assent by one President: Giani Zail Singh, in the case of the Postal Bill. He neither refused assent nor gave assent, just kept it with him. On another occasion, a Bill unanimously passed by both the houses was not assented to by President R Venkataraman. This was in regard to members' salaries allowances and pension.
I had something to do with it. I wrote a long note to the President explaining why it should not be assented to. Venkataraman sent it to the Attorney General, who agreed with the objections I had made but in the end said: "However, if the President desires to give assent to the Bill, no illegality will be involved". Venkataraman himself told me: "I took my red pencil and wrote: 'the President does not desire so at all'". So, when it comes to the crunch, the President can assert himself as well, even after the constitutional amendment. In the case of Delhi, the LG is endowed constitutionally with most of the powers to run the capital.