Signs condemning police brutality - Tensions rise in Hong Kong after the government banned protest | Source: Joseph Chan via Unsplash
Hong Kong is a special administrative region of the People’s Republic of China located on the Eastern Pearl River Delta of the South China Sea. From 1842 to 1997, the region was under the control of the Britishers.
In 1997 the sovereignty of Hong Kong was transferred to China with the principle of “one country, two systems” which provided some degree of autonomy for Hong Kong. This system was supposed to be in force for a period of minimum fifty years from 1997 to 2047. However, under President Xi Jinping, China has been aggressively making such rules and regulations which increase the influence of mainland China on administration of Hong Kong.
In June 2020, China started implementing a new national security law for which potentially severely limits the independence of the judiciary of Hong Kong. Under the proposed law, Hong Kong’s Chief Executive, who is answerable to Beijing, gets the power to appoint judges for specific security cases. It also calls for setting up a security agency in Hong Kong to resolve existing conflicts and challenges faced by Beijing with respect to Hong Kong.
China defended the law by citing that it would prevent and punish secession, subversion as well as foreign infiltration. Beijing has argued that these three factors are responsible for fuelling unrest in the city since last year. Critics however have very different opinions regarding the law. For them this law directly attacks the relative autonomy granted to Hong Kong after Britain handed it back to China in 1997.
The law can potentially be employed totarget anti-government protests and other forms of dissent in the region of Hong Kong. It has instilled fear in the minds of the Hong Kong residents that the Chinese Communist Party is trying to curb the freedom of speech and protest in the region in an effort to bring Hong Kong under its authoritarian rule.
Many protesters are of the belief that the local governments of Hong Kong are no longer autonomous and act on the whims of Beijing. They accuse the city's top leader, Chief Executive Carrie Lam, who is appointed by Beijing, of acting only in the interest of mainland China while ignoring to safeguard the autonomy of Hong Kong.
The protests Hong Kong witnessed in May 2020, were quite similar to the ones the city witnessed almost a year ago when China proposed an extradition law for Hong Kong. The law was eventually scrapped after a flurry of protests. However the protest against the territory’s existing leadership turned into a protest against Chinese ruling party’s efforts to merge Hong Kong with mainland China.
At its core, the protest movement is aimed at protecting Hong Kong’s autonomy and resisting encroachment from the mainland. However, China’s adamant approach in bringing Hong Kong under the mainland amidst a falling economy and rising agitation and police brutality has had a negative impact on the residents.
Many Hong Kong protesters have started moving to countries who are willing to adopt them over fears of being under scrutiny from the Chinese government. Many of the skilled workers are now looking at ways to exit the city and move to better alternatives. More than half of the people from the age group of 18 to 24 are considering options outside of Hong Kong owing to the uncertainty surrounding the region’s fate.
Despite the protest by citizens and condemnation and actions by the US, Britain and other Western countries, it seems unlikely that China is going to halt its efforts to dismantle the autonomy of Hong Kong and effectively merge it with the mainland China.
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Does giving the Lieutenant Governor more authoritative power have an impact on India's Federal structure?
On 3rd of February 2021, the NCT bill cleared by cabinet along with 20 other bills proposed to be introduced in the parliamentary session. The amendment was passed on 9th of February in the Rajya Sabha.
“The Bill proposed to amend the Government of National Capital Territory of Delhi Act, 1991, in the context of judgment dated 14.02.2019 of Hon’ble Supreme Court (Division bench) in Civil Appeal No 2357 of 2017 and other connected matters.”
The article explains the timeline and the practical implications of the NCT Amendment Act 2021 on the federal structure.
The Centre's amendments to the NCT of Delhi Act, gives more powers to the Lieutenant Governor and Delhi’s Kejriwal government were totally against the amendment as due to their bitter experience with the previous and current LG.
The Arvind Kejriwal government described the NCT Bill, as a murder of constitutional democracy and accused BJP of secretively drafting the amendments so as to govern Delhi in an unconstitutional manner using the LG's office.
The new amendment is expected to now clearly define the powers and functions of the Lieutenant Governor and the Delhi Government based on the 2019 judgement. The amendments add a category of bills, which fall outside the ambit of Delhi legislative assembly and which the Lieutenant Governor must reserve for consideration of the President. This category is supposedly added for the sake of “better governance” and to reduce potential conflicts. The amendments also specify that the elected government needs to send legislative proposals to Lieutenant-Governor (LG) at least 14 days in advance to seek his opinion and avoid any delays.
The tussle between the Delhi government and the Centre reached the Supreme Court 2017. The honourable Supreme court defined the role of the LG in Delhi and ruled that the LG cannot interfere in every decision of the Delhi Government. The tussle between the Union and Delhi government has that Article 239 AA of the Constitution at its core. The Article 239 AA gives Delhi the special recognition of a Union Territory with a Legislative Assembly that has a lieutenant governor as its administrative head.
In July 2018, a five-judge Constitution bench of the Supreme Court led by Chief Justice Dipak Misra stated that the lieutenant governor’s powers in the National Capital were only limited to land, police and public order.
“The lieutenant governor must work harmoniously with the elected government. The LG is the administrative head but can’t act as an obstructionist”, the bench stated. The supreme court also stressed upon the fact that the power and status of the LG was different from the state governors. They mentioned that the Lieutenant Governor must not be an obstructionist and must work harmoniously with the Delhi government. “There is no room for absolutism and no room for anarchy,” the bench stated. The verdict is not complete yet as the issue of services divided the bench that delivered the order and the matter is now addressed by a three-judge bench on the Supreme Court which has not concluded the hearing yet.
So far, the AAP has argued that former LG Najeeb Jung and the current LG Anil Baijal are undermining the federal structure of the Republic of India by objecting the decisions made by the Delhi government and overruling their authority in bureaucratic matters.
Former LG of Delhi with Prime Minister Modi | Source: Wikimedia
In July 2013, Najeeb Jung took charge as the LG of Delhi and Arvind Kejriwal swore in as the Chief Minister (CM) of Delhi in December 2013. After 49 days of governance, Arvind Kejriwal stepped down as his minority government was unable to pass the anti-corruption legislation due to lack of support provided by other political parties. In February 2015, the Aam Aadmi Party came back to power by a staggering majority of 67 out of 70 seats. However, the party faced a higher veto obstruction while making several decisions. In May 2015, LG Jung annulled all the bureaucratic postings by Delhi government and stated that power to appoint and transfer rests with him.
In June 2015, five officers of Bihar Police joined Delhi Government’s Anti-Corruption Branch (ACB). Jung rejected their employment at the ACB claiming that he was the person in charge even before the new amendment. In the same month, the Delhi government replaced the Home Secretary Dharam Pal and Jung obstructed the decision by vetoing the order. When the AAP government decided to hike circle rates in Delhi for agricultural land, the former LG Jung objected to the decision although the State government has the complete authority to take such decisions. In another instance in 2016, Jung set up a panel to probe over 400 files related to decisions taken by Delhi government. The CM of Delhi deemed it to be illegal.
Kejriwal and the AAP government blamed the former LG and Prime Minister Narendra Modi for the CBI raids of his office, FIRs filed by ACB against Arvind Kejriwal and former Delhi CM Late Sheila Dikshit in water tanker scam, restriction of control on appointing state bureaucrats and general obstruction of decisions.
Anil Baijal, the now LG of Delhi with Defence Minister Rajnath Singh | Source: Wikimedia
On 31st December 2016, Anil Baijal swore in as the Lieutenant Governor of Delhi. While the tussle between AAP and the LG continued, the alleged assault of Chief Secretary Anshu Prakash by AAP leaders at CM Arvind Kejriwal’s residence in February 2018 gave a new momentum to the tug of war.
Following the incident, the IAS association reportedly skipped routine meetings with ministers as a mark of protest but claimed that they have not suspended work. Before that, on December 2017, the turf war between Kejriwal and Baijal reached Parliament, with a Rajya Sabha member claiming that the CM was being treated like a “peon”.
In 2018, the AAP government demanded LG’s approval for the proposal for doorstep delivery of rations and also demanded grant of complete statehood for Delhi and installation of CCTVs. Baijal did not approve both the demands directly and further complicated the process. Kejriwal stated that the LG rejected the demands over “petty-politics”.
In June 2018,Delhi CM Arvind Kejriwal sat in a nine-day long hunger strike at the Lieutenant Governor’s office against the “strike” by IAS officers and Kejriwal wrote to Prime Minister Narendra Modi, requesting him, “with folded hands”, to intervene and end the agitation of the IAS officers.
The Aam Aadmi Party argues that the BJP is hell bent on ruining efficient governance of Delhi through the LG. Critics believe that the tussle has failed the federal system of our Democracy.
Chief Justice Dipak Misra, Justice Sikri and Justice Khanwilkar, in their written opinion devoted a significant portion to explain the understanding of federalism, and its fusion with democracy to achieve an “egalitarian social order”. According to our Constitutional scheme neither the States isolated islands, with their distinct vision, nor the Union government can make decisions that are meant to affect the interests of the States. The Chief Justice highlighted that there should be a sincere effort to avoid conflict and not encroach on each other spheres in a collaborative framework of federalism. To exercise authority, “there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them.” To attain the ideal balance in a federal structure, the Chief Justice suggested the Union and the States to have “mutual respect and deference to actualise the workability of a constitutional provision.”
Collaborative federalism involves healthy negotiation and coordination between the Union and State governments to ensure that the governance works within the circumference of the Constitution and in harmony.
