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Mohan Prasaran

Mohan Prasaran

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Published by OutlookMagazine

The Solicitor General of India's opinion on the Delhi government's proposal to place the Jan Lokpal Bill in the Delhi Legislative
Assembly

The Solicitor General of India's opinion on the Delhi government's proposal to place the Jan Lokpal Bill in the Delhi Legislative
Assembly

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Published by: OutlookMagazine on Feb 07, 2014
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07/01/2014

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OPINION Querist:
Hon’ble Lt. Governor of Delhi
 
My opinion has been sought in the following facts and circumstances:
 
The Government of National Capital Territory (
hereinafter referred to as „
GNCT
) of Delhi has proposed to place the Jan Lokpal Bill in the Delhi Legislative
Assembly as is evident from the letter of the Hon‟ble Chief Minister written to the Hon‟ble Lt. Governor on 31
st
 January 2014. As per the letter, it has been indicated that the Government plans to have the discussion and voting on Jan Lokpal Bill in the Delhi Assembly which is to be held not exactly in the Legislative Assembly  premises but in the Indira Gandhi Stadium on 16
th
 February 2014.
 
It is manifest that the GNCT of Delhi and the Hon‟ble Chief Minister have decided
to introduce the above Bill directly in the Assembly in the presence of vast numbers of public as the Assembly Session is sought to be held at the Indira Gandhi Stadium.
 
The Hon‟ble Lt. Governor has sought my opinion as to whether the introduction of
the Jan Lokpal Bill in the Assembly without sending the Legislative proposal to the Central Government is in consonance with the Transaction of Business of the GNCT of Delhi Rules, 1993 and also as to whether the proposal involves any constitutional infraction. Secondly, my opinion has also been elicited as to whether the present proposal is in tune with the mandate of Article 239AA of the Constitution of India.
 
2
 
It is also mentioned that a meeting is being held under the chairmanship of the Home Minister, Government of India on 6
th
 February 2014 to discuss issues regarding holding of meeting of Delhi Assembly in the Indira Gandhi Stadium. I will now first examine whether the proposal for passing the Bill is in consonance with the provisions of Article 239AA. For the sake of brevity, I do not propose to verbatim reproduce the provisions of Article 239AA. However, Article 239AA (3)(a),(b),(c) and Article 239(7)(a) would be relevant for the present purpose and accordingly they are extracted hereunder:
Article 239AA. Special provisions with respect to Delhi. - 
 
 (3)(a) Subject to the provisions of this Constitution, the Legislative  Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of  Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by  Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative  Assembly shall, to the extent of the repugnancy, be void:  Provided that if any such law made by the Legislative  Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:  Provided further that nothing in this sub-clause shall prevent  Parliament form enacting at any time any law with respect to the  same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.
 
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 (7)(a) Parliament may, by law, make provisions for giving effect to, or  supplement the provisions contained in the foregoing clauses and  for all matters incidental or consequential thereto.
 
As would be evident from Article 239AA(3)(a), subject to the provisions of the Constitution, the Legislative Assembly has been empowered to make laws for the whole or in part for the National Capital Territory of Delhi with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. Nothing as mentioned hereinabove would cause Article 239AA(3)(a) or derogate from the powers of Parliament under the Constitution to make laws with respect to any matter for the Union Territory or any part thereof. In terms of Article 239AA(3)(c), it is mandated that in the event of any provision made by the Legislative Assembly in respect of any matter which is repugnant to any  provision of law made by Parliament with respect to that matter whether passed before or after the law made by the Legislative Assembly or of an earlier law other than law made by the Legislative Assembly, then in either case the law made by the Parliament or as the case may be, such earlier law shall prevail and the law made by the Legislative Assembly shall to the extent of the repugnancy be void. In tune with Article 254 as per the first proviso to Article 239(3)(c), it
is mentioned, “
 However, if any such law made by the Legislative  Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory
”. The second proviso lays
down that nothing in this sub-clause shall prevent Parliament from enacting at any time

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