This article is written by Komal Saloni, from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith. This is an exhaustive article which deals with the introduction of the Government Of National Capital Territory Of Delhi amendment Bill, 2021.
Table of Contents
Introduction
The Government Of National Capital Territory Of Delhi Act was enacted by the Congress government in 1991 and Delhi was announced as a union territory with limited ‘legislative powers’ assembly. However, the GNCTD (Amendment) Bill, 2021 interprets that the government in Delhi means Lieutenant Governor and elucidates that the Delhi government shall take the opinion of Lieutenant Governor before implementation of any action.
The GNCTD (Amendment) Bill, 2021 will in effect make the ‘Lieutenant Governor’ the governor of the capital city. Nevertheless, when it comes to administrative power the elected government of Delhi that is also the Union Territory has more power to exercise. GNCTD (Amendment) Bill was passed by the Parliament to enhance the powers of the Delhi Lieutenant Governor. Among massive commotion and objection from the opposition members, it was passed by the Lok Sabha on March 22, 2021 (Monday), and from the Rajya Sabha on March 24, 2021 (Wednesday). After that the GNCTD (Amendment) Bill got assent from the President of India Ram Nath Kovind on March 28, 2021.
GNCTD Amendment Bill, 2021
At the present, the administrative setup of Delhi falls under the Delhi government, whereas, law and order, and the police come under the Union Home Ministry. Amendment Bill, 2021 changed the course. Thus, the Lieutenant Governor will have more power to exercise than the Chief Minister. The Lieutenant Governor owns the power to send a bill to the centre or the President when clashing with the elected government of Delhi. According to Amendment Bill, 2021, the Delhi government has to send the legislative proposal to the Lieutenant Governor 14 days prior and in case of delay, the elected government is questionable.
Besides, there is a provision that says the Lieutenant Governor, in case of urgent matters, can take an immediate decision whether the matter is pending before the President. In 2018, the Supreme Court held that the government of Delhi need not be required to gain Lieutenant Governor’s acceptance on regular affairs of administration, however, it needs to inform the lieutenant governor’s office.
Thus, the Bill allows the Lieutenant Governor to act in confidentiality in matters related to the Anti-Corruption Bureau and the All India (Civil) Services, which is outside the purview of the Legislative Assembly of Delhi. The validity of any decision taken indiscretion set-up by the Lieutenant Governor shall not be questioned. Once the Bill becomes Act, it must be binding on the Delhi government to take the viewpoint of the LG before any executive action. The Amendment Bill grants more power to the Lieutenant Governor in comparison to the elected government in Delhi.
The NCT Bill obtained the assent of the President that expressing ‘government’ in Delhi means ‘LG’
The Bill is passed in both the houses and also passed by the President, Ram Nath Kovind, assent now accords primacy to Delhi’s LG over the elected government of Delhi.
According to the codification, the power exercises are in the hands of LG. Here the government in Delhi means the lieutenant governor and the elected government has to seek the opinion of the Lieutenant Governor before moving for any action in Delhi.
Parliament passed the Bill in March – Lok Sabha on 22 March and Rajya Sabha on 24 March.
Elucidating the logic behind the Bill, Union Minister G Kishan Reddy said that the amendments were put forward to remove inconclusiveness in the existing Act. That changed, running in the law has been yelled in the soul of what has been held in the Supreme Court judgment and continued that there is no political angle and the amendments are on practical grounds. “The introduced bill doesn’t diminish any power entertained by the government of the National Capital Territory of Delhi that is previously provided by the Constitution of India.”
The Aam Aadmi Party said that it was intentional to approach the Supreme Court as opposed to the legislation, declaring that an unconstitutional attempt had been made, to make the Delhi government ‘administratively inadequate’ by the political party.
The Aam Aadmi Party opposed the proposed amendment through a simple Amendment Bill. It was declared that because Delhi has been honoured with a special status as per Article 239AA of the Constitution of India. Any change in the power of the Delhi government ought to be by way of Constitutional Amendments only.
Need for the Bill
Some of the needs of the bill are raised by the Union Minister G Kishan Reddy :
- The GNCTD (Amendment) Bill, 2021 is necessary to reduce the vagueness in certain issues allied to the functioning of the Delhi government.
- Certain cases related to the functioning of the Delhi government were filed in courts.
- Lieutenant Governor is an administrator thus has the right to know the daily affairs.
- Amendment in Act creates soundness in the government mechanism in NCT of Delhi.
- It will improve equality and extensiveness.
- Amendment leads to transparency in governance and amplifies public responsibilities.
Objective and scope
- In the present administrative set-up of Delhi, administrative affairs fall below the Delhi government, whereas, law and order, the police come under the Union home ministry.
- As per the ruling of the Supreme Court, Amendment Bill 2021 aims to demonstrate the power of the Chief Minister as well as the Lieutenant Governor. However, the lieutenant governor will have more power to exercise than the chief minister.
- The L-G owns the power to send a bill to the Centre or President when clashing with the elected government of Delhi.
- According to Amendment Bill, 2021 the Delhi government has to send the legislative proposal to the lieutenant governor 14 days prior, and for delay the elected government is questionable.
- Besides, there is a provision that says the lieutenant governor in case of urgent matters can take an immediate decision whether the matter is pending before the president.
- In 2018 the Supreme Court held that the government of Delhi need not be required to gain L-G’s acceptance on regular affairs of administration; however, it needs to inform the lieutenant governor’s office.
- Thus, the Bill commonly known as NCT Bill authorizes the Lieutenant Governor to act in confidentiality in matters related to the Anti-Corruption Bureau and the All India (Civil) Services, which is outside the purview of the Legislative Assembly of Delhi.
- The validity of any decision taken indiscretion by the lieutenant governor shall not be questioned.
- Once the Bill becomes Act, it must be binding on the Delhi government to take the viewpoint of the L-G before any executive action.
- The Amendment Bill grants more power to the Lieutenant Governor in comparison to the elected government in Delhi.
Important provisions
- Article 239AA: Special provision concerning Delhi inserted by (Sixty-ninth Amendment) Act, 1991.
This Article is added to set up an elected government in the union territory to pave the way towards the democratic setup and a representative form of government, accordingly, the majority have the right to personify their opinion in policies and law belonging to NCT of Delhi concerning the limitation imposed by the constitution of India.
It is important to give a purposive interpretation to Article 239AA that the principle of federalism and democracy which are part of the basic structure of the Constitution must be reinforced in Delhi in their truest sense.
- Article 239AA(1): By the Sixty-Ninth Amendment Act 1991, union territory Delhi shall be called the national capital territory of Delhi and the constitutional governor designated as an administrator shall be appointed under Article 239 of the Constitution.
- Art. 239 AA(3): According to the provision, the legislative assembly shall have the power to make laws for the national capital territory of Delhi concerning the matter listed under concurrent and state list as so far the matter is concerned with the union territory of Delhi except matters concerning entries 1, 2 and 18 of the State List and entries 64, 65 and 66 of that list before related with entries 1,2, and 18.
(b) notwithstanding anything in sub-clause (a) shall diminish the power of the parliament to make laws concerning any matter related to union territory.
- Article 239 AA (4) – Provision: In case of any differences of opinion on any matter between Lieutenant Governor and Ministers, the Lieutenant Governor shall mention it to the President for deciding on the matter.
- Article 239AA(3)(a) and Article239AA(4) – This shows that the executive power of the government of NCT Delhi is co-existent and extensive with the legislative power of the Delhi Legislative Assembly.
GNCT of Delhi v. Union of India & Anr. (commonly known as Delhi v. LG case)
In the Delhi v. The LG, (2018) was held by the Supreme Court that the Lieutenant Governor is an administrative head only in a limited sense and is bound by the aid and advice of the council of ministers of the Delhi government, excluding in the matters of land, police, and public order.
It was alleged by the elected government of Delhi that the bill is an attempt towards the interpretation of the Constitutional Bench. By declaring the lieutenant governor the government of Delhi, the bill seeks permission to enhance the power of the Lieutenant governor and demolish the power of the elected government.
The future of the NCT Delhi
The Aam Aadmi Party government led by Arvind Kejriwal said that; the passing of the GNCTD amendment Bill in both houses is an insult to the Delhi people. The bill gives the power to the BJP government and takes away the power from the elected government of Delhi who was voted by the people. A setback to the Aam Aadmi Party who had been calling for full statehood for Delhi, which is also supported by the BJP government too in 2014. Kejriwal has a long history of running in Delhi with the Lieutenant Governor.
The Aam Aadmi Party has been opposing the Bill since the Bharatiya Janata Party (BJP) said it will present it in the Lower House of Parliament. AAP had protested on the 17th of March at Jantar Mantar to oppose the centre’s move. Delhi Chief Minister Arvind Kejriwal, leading the protests, blamed the BJP for running the Delhi government by power.
Then a few questions were raised by Kejriwal: What transpired the people of Delhi? What materialized the Chief Minister? Why were the elections held?
How relevant is federalism under the GNCTD Bill?
On March 25, 2021, Member of Rajya Sabha Dr Abhishek Manu Singhvi disagreed with the Govt. of National Capital Territory of Delhi (Amendment) Bill 2021, addressing the Bill to be “the most destructive & unconstitutional Bill Rajya Sabha has ever accepted”.
This Bill has restored the earlier but significant argument on Federalism.
One of the significant features of the Indian Constitution is that, like many other western states, it demonstrates the structure of federalism. For a long time, the precise nature of India’s Federation of states has been a matter of dispute.
The amenities and conflicts concerning the Government of NCT of Delhi & the Union Government, arising because of disputes related to the jurisdiction of the Government of NCT Delhi Art. 239AA and the Union government and its representative, Lieutenant Governor under Art. 239. The coexistence of these provisions conflict with the power of the Government of Delhi and the Lieutenant Governor.
According to the Union government, given that New Delhi is a Union Territory – Article 239 of the Constitution of India empowers the Lieutenant Governor to act autonomously with his council of ministers. Nevertheless, the elected government of Delhi, proclaimed that Article 239AA of the Constitution of India grants Delhi a unique status as a legislatively elected administrator. This creates a power struggle between the state government’s Lieutenant Governor and Administrative powers in the NCT of Delhi.
In, Govt. Of NCT Of Delhi v. Union of India (2018), it was held by the five-judge Bench that the approval of Lieutenant Governor is not needed on issues other than public order, police, and land. Further, the Court added that the council of ministers’ decision, however, be communicated to the Lieutenant Governor and the LG was bound before the aid and advice of the council of ministers. The Court also held that the status of LG of Delhi is not the same as the Governor of state. Preferably, Lieutenant Governor remains an administrator with “limited power”. Court pointed out that the elected government must acknowledge that Delhi is not a state.
However the NCT of Delhi (Amendment) Bill 2021, therefore passed to make it compulsory to the Government of Delhi to take the consideration of the Lieutenant Governor before any decision-making actions. Additionally, the Lieutenant Governor has been made similar to the government. As well, this provides LG extensive power to mention all the matters to the president. These amendments are inherently in violation of the Govt. Of NCT of Delhi vs Union of India, 2018 Judgement is also offensive to the Doctrine of Pith & Substance.
The Apex Court had to take the edge of the current argument to permanently resolve the jurisdiction. India will only be booming and wealthy if all of its states also do. The sound substructure of federalism and democracy on which our country has prospered will begin to disintegrate if there is dissension or conflict between the Centre and the states.
The doctrine of Pith & Substance
The factual meaning of the “doctrine of pith and substance” is the essence and true character of an enactment.
- Pith: “True character” or “essence of something”.
- Substance: “sine qua non-elements of something” or “an essential part of something”.
Accordingly, the doctrine completely can be entertained as the sine qua non-element of something in which its bona fide essence falls.
The doctrine is used in cases predominantly to decide the capacity of the legislature to validate laws according to Article 246 on subject affairs enlisted in three lists under Seventh Schedule which strongly outlines a distinction between the power of Centre and State legislatures to formulate laws on definite subject matters. Alongside, the doctrine helps to resolve the issues of abhorrence that appear because of discrepancies in laws formed by the parliament and the state assembly under Article 254 of the Constitution of India. Presuming, there is a dispute between the three lists. The list – l always prevails, running above the other two lists and list III will prevail above List II. Assuming the repulsiveness of laws formed by both the legislatures undergoing List III, the law created by the Union legislature would conquer. Additionally, in a direction to regulate the legality of an enactment, the standard of encroachment or invasion must be considered. The legislation would be declared reasonable if the encroachment is ancillary or incidental. Whether the invasion transpires to be substantial, the enactment will depict invalid.
Conclusion
Hence, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, increases the powers of the LG, who appears for the Centre, in correspondence to the national capital’s elected government. This BiIl when it became an Act shall be mandatory for Delhi’s elected government to consult as well as being answerable to the Lieutenant Governor. According to the Bill, LG has an inherent power to exercise. It will loosen up the Delhi government to work accordingly.
References
- https://legal.economictimes.indiatimes.com/news/industry/president-gives-assent-to-bill-that-says-government-in-delhi-means-lieutenant-governor/81758493
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