The AAP government has resigned because they couldn’t introduce the Jan Lokpal Bill in the assembly. The hurdle was the message sent by the Lt. Governor to the assembly u/s 9 of the GNCTD Act, 1991. In his message, the LG clearly stated that the bill was not sent to him for his prior consent as required u/s 22 of the GNCTD Act, 1991, for the bill was in the nature of a financial bill; thus he couldn’t make a prior reference to the Central Government as required u/r 55(1) of the Transaction of Business of the GNCT Rules, 1991 (TBR). The rule 55(1) of the TBR inter alia requires the money bills and any other bills ultimately requiring additional financial assistance through substantive expenditure from the consolidated fund of the capital, to be referred to the Central Government by the LG.
Inter alia, the AAP has objections to the prior reference of the money bills and the other financial bills withdrawing from the consolidated funds, to the Central Government. The ground for objection is that it is against the mandate of the constitution u/a 239AA of the Indian Constitution, which is a special provision with respect to the NCTD. They have taken legal opinions from various legal experts, out of which I find Justice Mudgal’s legal opinion to be balanced, and, also, it is representative of the opinions of the other legal experts. He has opined that the rule is ultra vires to the extent it refers matters which are not in the nature of taxation, trade, and commerce. The AAP has neither challenged the provisions of the GNCTD Act, 1991, in any of the public debates nor received any legal opinion with respect to the same. It is evident from Justice Mudgal’s opinion that his opinion is based on the wholesome reading of the rule 55(1) applying the rule of ejesdum generis, thus reading down other parts of the rule in light of article 286, 287, 288 and 304 of the Indian Constitution. Well, I think, the approach adopted is inappropriate as the three sub-rules of the rule 55(1) deal with completely different aspects, and, in fact, the first sub-rule per se deal with two different aspects.
The TBR have been framed u/s 44 of the GNCTD Act, and, in particular, the rule 55(1) falls under the chapter dealing with the procedure to be adopted in the cases of difference of opinions between the council of ministers/minister and the LG. The s. 46 of the GNCTD Act gives power to the LG to make rules with the prior approval of the President with respect to the following: the custody of the consolidated fund of the capital, the payment of moneys into such funds, the withdrawal of money there from, and all other matters connected with or ancillary to those matters. It seems that the Jan Lokpal Bill required the prior reference to the Central Government because it was withdrawing from the consolidated fund, with respect to which the rules have to be framed with the prior approval of the President u/s 46 of the GNCTD Act. I won’t read much into the rule 55(1), to the extent dealing with procedure to be adopted in case of withdrawal from the consolidated fund, having been framed under the wrong section, i.e. s. 44, of the GNCTD Act — it should have been framed u/s. 46 of the GNCTD Act. The two sections can be read together, and the rule framed, thus so read, would be valid. As I have already stated that the AAP has not challenged any provision of the GNCTD Act — which anyways could not have been challenged — thus the rule, so framed, is valid and constitutional.
Actually, there is no need to look into so many technical aspects. The issue is straightforward: Who should have the last right over the consolidated fund of the capital? And the answer is obvious in the current paradigm when the NCTD is not a full state.
Please visit the following links:
Business of Transaction Rules for the NCTD
The relevant provisions of the Indian Constitution
https://drive.google.com/file/d/0B3C_zx4dsPdWWXlYbFZMaFFfQjQ/edit?usp=sharing – https://drive.google.com/file/d/0B3C_zx4dsPdWMGFEZU56SkFhaGs/edit?usp=sharing – https://drive.google.com/file/d/0B3C_zx4dsPdWY2M1V3l2LVpRaVk/edit?usp=sharing
The LG’s letter to the Assembly
Justice Mudgal’s opinion
Unfortunately, I have not been able to access the draft of the Jan Lokpal Bill attempted to be introduced in the Assembly, therefore I can’t comment on the validity of the LG’s letter.
© 2014 Ankur Mutreja