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This Article is written by Aayushman Jauhari and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Introduction

The much-needed legislation to resolve the tussle of power between the Government of NCT Delhi and its Lieutenant Governor was passed by the parliament on 28th March 2021 under the name “Government of National Capital Territory of Delhi Amendment Act 2021” (hereinafter referred to as “GNCTD Amendment Act”) which came into force on 27th April 2021. 

This Act amends sections 21, 24, 33 & 44 of GNCTD Act 1991, from which the elected government of NCT of Delhi (hereinafter referred to as “elected government”) and the Lieutenant Governor (hereinafter referred to as “LG”) derive their power to govern NCT of Delhi. This amendment Act 2021 is passed: – 

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  1.  To clarify the ambiguity in GNCTD Act 1991 regarding the powers and the responsibilities of the elected government and the LG towards the people of Delhi.
  2. To implement the verdict announced by the Hon’ble Supreme Court in the case of Govt. of NCT Delhi vs. UOI, 2018.

Why is Delhi a Union Territory?

Delhi is a Union Territory because it is the capital of the sovereign nation, India. If you look at the capital of various countries around the world, then you will observe in the majority of cases that capitals are usually governed by the Central Governments. Thinking logically also it sounds correct because capital belongs to the entire nation, thus it should be governed by the central government of the country. For example, Canberra, the capital of the federal country Australia is governed by its central government. Similarly, Washington DC, the capital of the United States of America is also governed by its central government.

How did the Union Territory of Delhi get this special status? 

In the initial years of Republic India, the union territory of Delhi had a special status among other Union Territories of India because it had its own Legislative Assembly from 1952 to 1956, which was constituted under section 3 of “Government of Part C States Act 1951”. However, the “State Reorganisation Act 1956”, abolished the Legislative Assembly and made Delhi a normal Union Territory that would be directly administered by the President of India. But there was a popular demand by the residents of Delhi as well as by various political parties in India that they should give statehood to Delhi. However, some part of the society disagrees with this proposition because it will create a situation where the power to govern Delhi will be concentrated at two levels, one at the centre and one at Union Territory. Hence, there will be a clash of power between the government in the centre and the government in Delhi in making public welfare decisions and thus ultimately residents of Delhi will suffer. 

Formation of the S Balakrishna Committee

To resolve the above-mentioned issue of clash of power between the governments S Balakrishnan Committee was constituted in 1987 to look into the issue of the Reorganisation of Delhi. The report of the committee said that Delhi belongs to the nation as a whole, but it is also inhabited by its own people. The report rejected the popular demand of giving statehood to Delhi because doing so will give Delhi a disproportionate presence in comparison to other states of India. The reason behind disproportionate presence was that providing statehood to Delhi would make Delhi a unique state which would not only govern Delhi but also govern important institutions of the country like the Union Parliament, Supreme Court, foreign embassies etc. However, the committee said that if it denies statehood to Delhi then it would be denying the people of Delhi a stake in their own future.

Thus, the committee suggested a mid-way solution that Delhi should be given a special status which makes it somewhere above the other Union Territories and somewhere below to the States.

69th Constitutional Amendment Act, 1991

To implement the suggestion of the S. Balakrishnan Committee, the 69th Constitutional Amendment Act, 1991 was passed which inserted Article 239AA in the constitution to confer special status to Delhi. This Act provided that Delhi would have its own Legislative Assembly which is empowered to make laws on any subject mentioned in List-II (State List) and List- III (Concurrent List) of Schedule-VII of the Indian Constitution except making laws on Police, Public Order and Land. The parliament was empowered to make laws on those subjects.

Need for Amendment

The healthy relationship that existed between the central government and the government of NCT of Delhi since 1993 underwent a major change in the year 2013 when the Aam Aadmi Party (AAP) entered the politics of Delhi. The political rivalry and difference in ideologies of Bharatiya Janata Party (BJP) led central government and AAP led government of NCT Delhi, created a tussle or conflict of power between the elected government and LG (who is the administrative head, representing the central government). This conflict of power deteriorates the healthy relationship and hampers the development in Delhi.

Incidents that deteriorate the healthy relationship between governments

Following are the few incidents which manifest how the central government through LG interferes and obstructs the day-to-day administration of NCT of Delhi and how the Delhi government obstructs the implementation of central policies in NCT of Delhi: –

  1. After the victory of the 2015 legislative assembly elections, the AAP led Delhi government passed 14 bills in the legislative assembly but none of these bills was either signed or sent back to the legislative assembly for reconsideration. Thus, LG indirectly stops the implementation of those bills by holding them with him for infinite time.
  2. CM Delhi along with Deputy CM and cabinet ministers had to protest for more than 24 hours in LG’s residence just to meet LG and request him to end the unlawful strike of IAS officers in Delhi which was continuing for the last 3 months.
  3. Anti-Corruption Bureau (ACB) of Delhi arrested the head constable of Delhi Police for taking Rs. 20,000/- as a bribe. Since the police don’t come under the powers of the Delhi government, ACB referred the case to Delhi Police to take appropriate actions against the alleged head constable. However, Delhi Police officials defended him and filed FIR against the officials of ACB for abducting the head constable.
  4. Parliament passes the bill for the implementation of the National Population Register (NPR) and National Register of Citizen (NRC) in the whole country. However, the Delhi Legislative Assembly passed a resolution to prevent the enforcement of NPR and NRC in Delhi.

Supreme Court interpretation of Article 239AA

In case of Govt. of NCT Delhi v. Union of India, 2018 Supreme Court (see here)

The five-judge Constitutional bench of Hon’ble Supreme Court presided over by then CJI Deepak Mishra interpreted Article 239AA of the constitution which relates to the structure of governance in NCT of Delhi and held that “LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advice of the NCT Government in areas other than those exempted.” The bench added that the executive powers of the Union in respect of NCT of Delhi is confined only to three subjects namely Police, Public Order and Land. Apart from these subjects, LG doesn’t have any power to interfere in the day-to-day administration and decisions taken by the council of ministers.

Observation

The Constitutional bench observed that “Pragmatic and collaborative federalism will fall to the ground if the Union has overriding executive powers even in matters for which Delhi Legislative Assembly has power.”

The bench further added that proviso to Article 239AA (4) must be operated and applied in a manner that facilitates and does not obstruct the governance of the NCT of Delhi. It stated that “If the expression any matter was to be construed as every matter or every trifling matter then it would bring the administration of the affairs of NCT to a standstill and elected representatives would be reduced to cypher”.

Court held

The top court held that if any bill passed by the Delhi Legislative Assembly is referred to LG and he used his power of pocket veto i.e. holding the bill with himself and neither giving his consent nor returning the bill back to the legislative assembly for reconsideration nor referring the bill to President, then, in that case, LG consent is not required and the government is free to implement its decisions. However, it should not mean that the council of ministers is not required to communicate its decision to the LG.

Elected Government’s reaction to the Supreme Court’s verdict

The elected government of Delhi, encouraged by the verdict of the Supreme Court in Government of NCT Delhi vs. Union of India, 2018 had stopped communicating with the LG about the decisions of the cabinet. Such decisions were communicated to the LG only when they were implemented on the ground. Such interpretation of the Supreme Court verdict is not only wrong but also unconstitutional because it prevents LG from exercise its constitutional power specified in Article 239AA (4) to refer the decisions of the Council of Ministers to the President in case of disagreement between the LG and the Council of Ministers. Thus, it was also one of the reasons behind bringing the GNCTD Amendment Act 2021.

Amendments made in Government of National Capital Territory of Delhi Act, 1991

The GNCTD Amendment Act, 2021 makes the following amendments in the Government of National Capital Territory of Delhi Act, 1991: –

  1. Inserted sub-section (3) in section 21 which states that the term “Government” used in any law, which will be made by the Legislative Assembly, shall mean the government of LG.
  2. Amendment to section 24 states that LG could also reserve the bill passed by the legislative assembly if such bill accidentally covers any of the matter which is beyond the powers of the Legislative Assembly.
  3. Section 33 sub-clause (1) after amendment states that the Legislative assembly can make rules governing its procedure and its conduct of business but such rules and procedures should not be in contradiction to the rules and procedures of the House of People. Further, it prevents the Legislative Assembly and its Committees not only to take up matters relating to day-to-day administration but also to probe administrative decisions. At last, it states that any rule which violates the above-mentioned provisions shall be void and it will have retrospective effect.
  4. Inserted a proviso to sub-section (2) of section 44 which states that before implementing any executive decision taken by the Council of Ministers, the opinion of the LG is mandatory to be obtained on all those matters which may be specified by the LG.   

Critical Analysis

Passing GNCTD Amendment Act 2021 is a great step by the central government to resolve the tussle of power between the elected government of Delhi and the LG. This amendment not only crystalizes that the ultimate power to govern Delhi rests with LG but also clarifies the ambiguities by specifying the powers and responsibilities of the LG and the elected government towards the people of Delhi.

Observation of the Amendment Act

 On digging deep into the amendments made by the GNCTD Amendment Act 2021, it is observed: –

  1. Amendment to Section 21 – Referring to LG as the “Government of Delhi” and giving sweeping powers to the LG over the elected government of Delhi is not only against the basic structure of our constitution but also against the verdict given by the constitutional bench of the Supreme Court in case of “Government of NCT Delhi vs Union of India 2018”.

It is also against the democratic spirit of the constitution because elected representatives (Member of Legislative Assembly) which represent millions of voters of Delhi will lose their power to raise their voices or to resolve their problems as the real power to govern Delhi will now vest in LG, who is not an elected representative but is an administrative head representing the central government.

AAP’s Member of Parliament, Sanjay Singh strongly opposed the Bill in the Parliament by pointing out that the bill is violative of Article 239AA (6) of the constitution which states that “Council of Ministers shall be collectively responsible to the legislative assembly.” However, this bill is going to make the Council of Ministers responsible to the LG because it mandates the Council of Ministers to take prior consent of the LG before implementing any decision.

  1. Amendment to Section 24 – It states that LG has to reserve the bill passed by the Legislative Assembly for the consideration of the President which “incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly.” 

It simply means that any bill passed by the Delhi Legislative Assembly which incidentally covers the subject matter of Land or Police or Public order will be reserved by the LG for the consideration of the President. For example, the Delhi Legislative Assembly passed a bill to set up a solid waste treatment plant in Delhi. Such a plant needs a piece of land over which it can be set up but the legislative assembly neither has the power to allot land nor the authority to make laws regarding the land as it is beyond the powers of the Legislative Assembly. The point to be noted is that though the Legislative Assembly has the power to set up a solid waste treatment plant and make laws regarding it, still this bill will be reserved by the LG for the consideration of the President since this bill incidentally covers Land.

Thus, the conclusion drawn is that the term “incidentally” is very broad and it can lead to a situation where LG can reserve each and every bill passed by the Legislative Assembly for the consideration of the President.

  1. Amendment to Section 33– It is no wrong to say that the amendment to this section is an assault on the administrative powers of the Delhi Legislative Assembly. It is because this Amendment Act not only prevented the assembly from making rules on matters of day-to-day administration but also prevented it from setting up a committee to inquire about administrative decisions.

Further, it is to be noted that the Amendment Act is retrospective in nature which means that all the rules made by the legislature on matters of day-to-day administration before the enactment of this Amendment Act, will also become void after the enactment of the Act.

After, analyzing this amendment few questions that arise in our minds are that: –

  1. Why this Amendment Act is retrospective in nature?
  2. If the legislature is prevented to make rules on administrative matters, then who will be empowered to make such rules for the NCT of Delhi?
  3. Why such administrative powers are taken from the Legislative Assembly? 

Unfortunately, the Act is silent on these questions.

However, some critics tried to find the answer to these questions.

They say that before the 2020 Delhi Legislative Assembly elections, unfortunate riots took place in Delhi. A committee named “Peach and Harmony Committee” was constituted by the legislative assembly to investigate the Delhi Riots. During its investigation, it found that certain Facebook posts were instigating people to commit violence in Delhi. Thereafter, the committee issued summons to the top executives of Facebook to ask them why they didn’t put down the posts or at least initiated any actions against those hateful, abusive posts? Instead of appearing before the committee, Facebook approached the court saying that the committee didn’t have the power to summon Facebook. 

At present, the decision of the court is awaited but critics believe that the central government may have foreseen that the decision of the court will go in favour of the Delhi Legislative Assembly. Hence to stop this committee to investigate Facebook, this provision is added.

  1. Amendment to Section 44 – It stated that before implementing any executive decision, the Council of Ministers has to take prior consent of the LG. Its effect is that it will cause delay which ultimately leads to the inefficiency of the elected government in resolving the problems of the people of Delhi.
  2. Limitation period – This Act lacks in providing a limitation period for the LG within which he has to either give his assent or refuse it or pass it to the President for consideration.

Reaction upon the implementation of GNCTD Amendment Act, 2021

Institution of a case in Delhi High Court

Since the implementation of this Act on 27th April 2021 three writ petitions have been filed in Delhi High Court challenging the constitutional validity of this Act. Out of these three petitions, the latest petition was filed by AAP member Neeraj Sharma under the title “Neeraj Sharma vs UOI & Anr.” (See here) challenging the vires of GNCTD Amendment Act for being prima facie violative of basic structure doctrine of the constitution and also violative of Article 14,21 and 239AA of the constitution.

Prayer

This petition seeks the following reliefs from the Hon’ble Court: –

  1. To stay the operations of the GNCTD Amendment Act 2021 till this petition is decided by the court.
  2. Issue an appropriate writ/direction declaring that the impugned Act is unconstitutional and violative of the principles of democracy, federalism, Article 14 & 21.
  3. To recognise and declare the “Right to good governance” as part of Article 21 of the constitution.

Notice issued

Taking cognizance of the matter, the division bench comprising Chief Justice D.N Patel and Justice Jyoti Singh issued notice to the central government for considering the merits of the impugned Act.

Conclusion

Though this amendment Act resolves the conflict of power between the LG and Government of NCT of Delhi and also clarifies the duties and responsibilities of both towards the people of Delhi but doing such things at the cost of violating constitutional provisions and overturning the judgement of the constitutional bench of Supreme Court is not only inappropriate but also not at all welcomed in the democratic country, India. 

Thus, in my opinion, transferring the powers of the elected head (Chief Minister) to an appointed head (Lieutenant Governor) is against federalism which is the rudimentary edifice of our constitution. Such transfer of power would not only vanish the role played by the elected state government in governance but would also shatter the federal structure of our constitution. Hence, such amendments which cause more harm than good should be avoided. 

References

  1. https://en.wikipedia.org/wiki/Delhi_Legislative_Assembly
  2. https://prsindia.org/billtrack/the-government-of-national-capital-territory-of-delhi-amendment-bill-2021
  3. https://youtu.be/qMFq15Q3xVU
  4. https://indiankanoon.org/doc/144413017/
  5. https://www.livelaw.in/top-stories/centre-notifies-gnctd-amendment-act-which-enhances-powers-of-delhi-lg-with-effect-from-april-27-173237
  6. https://www.barandbench.com/news/litigation/delhi-high-court-seeks-response-aap-member-challenge-gnctd-amendment-act

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