This article is written by Niharika Agrawal, pursuing B.B.A.L.L.B from IFIM Law School. This article deals with the recent amendments in the Government of National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act, 2021, and its impact upon certain provisions on the Bill.
The Government of National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Bill, 2021 was introduced by the central government and received assent from the President earlier in 2021. It replaced the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Ordinance, 2020. The current Bill aims to amend the Government of National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. This Bill also seeks to make changes in the Government of National Capital Territory of Delhi Act, 1991. It deals with some important provisions of the Bill.
This article is a detailed study of the Amendment Bill of 2021, and a comparative study with the previous Act. It also deals with the impacts of the current amendment Bill upon the mechanism of the Government.
A comparison between the Second (Amendment) Bill, 2021 and NCT Delhi Act, 1991
The current Bill of 2021 has made amendments in Sections 21, Section 24, Section 33, and Section 44 of the Government of National Capital of Delhi Act, 1991.
According to these amendments, the term “government” should mean Lieutenant Governor in any law made by the Legislative assembly. This amendment has necessarily provided an opportunity to the Lieutenant Governor to use his power under Article 239AA (4) of the Indian Constitution. It provides the power to advise or keep his opinion before the implementation or execution of any decision taken by the Council of Ministers. Thus the Delhi government will have to seek approval from Lieutenant Governor before taking any decision. For ensuring more accountability, the additional clause was added to Section 44 of the Act of 1991 that obligates the Delhi Government to obtain an opinion from the Lieutenant Governor before implementing any action or decision. This means that the state government or cabinet would need to seek the LG’s opinion before implementing any decision. It provides enormous power to the Lieutenant Governor to reserve the Bills in various matters for the final consideration of the President. These matters include as follows:-
- The Bills may diminish the powers of the High Court of Delhi.
- The Bills that the President may reserve.
- The Bills deal with the salaries and allowances of the speakers, Deputy Speaker, and the members of the Assembly and the Ministers.
- The Bills relating to the official languages of the Assembly or the NCT of Delhi.
The Lieutenant Governor can also reserve the Bill for the consideration of the President which covers matters outside the scope of the Legislative Assembly.
Protest and conflicts
However, this amendment in the Bill of 2021 has given rise to protest among the Delhi Government against this amendment Bill. This was because of the judgment given by the Supreme Court in the case of Government of NCT of Delhi v. Union of India, 2018. In this case, it was held that the Delhi Government has complete power to make laws and execute them like any other legislation, except matters related to police, public order, and land. Further, the Court opined that such decisions must be once communicated to the Lieutenant Governor. The Court also clarified that the Lieutenant Governor does not enjoy any independent decision-making power.
Therefore the recent Bill of 2021 has led to conflict between the power-sharing of the Chief Minister and Lieutenant Governor. The recent Bill has mandated the Delhi Government to take opinions from the Lieutenant Governor on any execution. It has brought the position of both parties on the same platform. According to the Delhi Government, this has led to a violation of the Supreme Court Judgement. Despite all the debates and protests, the Bill was passed by Parliament in March 2021.
The Bill of 2021 also provides permission to the Legislative Assembly to make consistent rules and regulations for governing the procedure and conduct of business in the Assembly and Lok Sabha. However, it prohibits the Legislative Assembly or its committee from making any rules related to the matters of day-to-day administration, or to conduct inquiries in relation to administrative decisions. It has revoked all such rules which were made before the enactment of the current Bill of 2021.
Reason and objective
The ‘objectives and reasons’ behind this amendment were that there was no structural mechanism for the time-bound implementation of Section 44 of the Act of 1991 effectively. Before the enactment of this Bill of 2021, it was not specified as to what matters are necessary to be submitted to the Lieutenant Governor before its implementation. It has also been initiated to interpret the important provisions of Article 239AA of the Constitution in accordance with the structure of governance in the National Capital Territory of Delhi. Further, the Act of 2021 also gave effect and interpretation to the case of the Government of NCT of Delhi v. Union of India decided by the Supreme Court. The Bill aims to promote strong relations between the legislature and the executive, and also define the responsibilities of the elected Government and the Lieutenant Governor, in line with the constitutional scheme of governance of the National Capital Territory of Delhi that was also aimed by the Apex Court.
- According to the opposition party as well as the ruling party, the enacted Bill is violating the provisions of the Constitution as it seeks to minimize the powers of the government of Delhi.
- It was also observed that due to this amendment the position of the Chief Minister of Delhi would be of no use and may have an adverse effect on the federal system of the country.
- This may also lead to delay in decision making as they have to wait for the Lieutenant Governor’s opinion for implementation of any act by the government.
- This is against the spirit of federalism.
Comparison between Second (Amendment) Bill, 2021 and (Special Provisions) Second Act, 2011
The Bill of 2021 has also made amendments to the Act, 2011. The Act of 2011 was in the regulation or was valid up to the 31st of December 2020. The current Bill of 2021 seeks retention for the deadline of the Bill till the end of the year 2023 that is 31st December 2023. Further following provisions of the Act of 2011 were amended as follows:
Provisions under the 2011 Act
- The slum dwellers and jhuggi-jhopri cluster were moved from one place to another concerning the provision of the Delhi Shelter Improvement Board Act, 2010, and the Master Plan for Delhi, 2021.
- Regularisation of all the unauthorized colonies and the area of village Abadi (with their extension).
- Formulating the plans and policy for the construction of farmhouses beyond the permissible building limits and all the other areas of the National Capital Territory of Delhi.
- No imposition of punishment or penalty on any action and mitigating the inconvenience to the people of Delhi in accordance with the matter of any destruction or sealing of structures under the Master plans of Delhi which was enacted in 2007. The motive behind this was the welfare of the urban people and informal sectors through plans and policies.
The 2011 Act consists of the provision for regularisation of unauthorized colonies that came up in the national capital as of 31st March 2002 and also where the construction ensued till 1st June 2014. The objective behind amending this is to provide unauthorized colonies with the identity for regularisation concerning the Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019 and the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019.
Hence, all the unauthorized colonies are eligible for regularisation that emerged as of 1st June 2014 and has been availed with 50% development as of 1st January 2015. The ultimate aim of the government is to convert the ordinance into legislation through the Bill of 2021.
Lastly, the Bill aims to replace the ordinance of 2020 brought by the President to the same effect on the 30th of December 2020.
From the above amendments, it can be concluded that the objective of the Amendment Act 2021 was to remove all the ambiguities and bring clarity to the previous acts. The following changes were observed in the current Bill of 2021.
- It has amended the Government of National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 by extending its validity up to 2023.
- It protects the unauthorized colonies from the fear of getting sealed.
- It ultimately aimed to formalize the development of up to 50% in the unauthorized colonies.
These amendments were important for the people who were staying in such unauthorized colonies where there was a lack of adequate services. This will ultimately give rise to easy accessibility to all the facilities and amenities in such areas.
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