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Decoding Constitutionality and contradictions postulated by Government of National Capital Territory of Delhi (Amendment) Act, 2021

The Government of National Capital Territory of Delhi (Amendment) Act has received the Presidential assent and addresses changes in capital city’s administration. The amendment saw walkout of opposition from Rajya Sabha and has all over again revived fight over administrative powers between Delhi’s elected government, the Central Government and Lieutenant Governor. The article discusses the amended clauses, its various issues and conformity to the landmark ruling in this context i.e., Delhi v. LG case. Before delving into main issues, let’s first look upon the major changes it brought.

  • The expression “Government” mentioned in any law to be created by the Legislative Assembly shall henceforward mean the Lieutenant Governor. 
  • LG shall not assent to, but shall reserve for the consideration of the President any bill that covers any of the matter which falls outside the purview of the powers conferred on the Legislative Assembly.
  • The Legislative Assembly may make rules for regulating subject to its procedure and conduct of business which shall not be inconsistent with the Rules of Procedure and Conduct of Business of the Lok Sabha. 
  • The Legislative Assembly shall not make any rule to enable itself or its committees to consider the matters of day-to-day administration of the capital or conduct inquiries in relation to the administrative decision. Any such rule contravening this provision before the commencement of the amendment shall be void. 
  • Before taking any executive action in pursuance of decision of the Council of Ministers or any competent authority, under any law in force, the opinion of LG shall be obtained by a general or special order.

The Lieutenant Governor is the nominative administrator and not the elected representative. This might have serious implications on the federal structure and spirit of the nation. In any Democracy, the will of people is ‘supreme’. The elected representatives ought to refer as ‘the Government’. However according to General Clauses Act, 1897, the President and Governor are titular heads of the Central and State Governments respectively, but the real power has been forever vested within hands of the elected representatives. The act of specifying nominative head as the Government is violative of democratic spirit and its very foundational principle. 

According to Indian Constitutional system, each legislative assembly is unique. Although it’s true that the conduct rules for numerous assemblies are similar, there’s no law or constitutional provision that dictates consistency in conduct rules, and certainly, none that says an assembly’s rules should be consistent to that of the Lok Sabha. In the Statement of Object and Reasons, it’s mentioned that this consistency is vital to provide structural mechanism for the effective time bound implementation of S.44 of the principal act. The Union Minister of State for Home while laying blame on previous governments for uncertain separation of powers, in his reply speech uttered that the amendment would pave way for good administration. On the other hand, the governance will now bereft legislative deliberation reflecting that the democratically elected assembly was hindering people’s welfare. 

The fourth amended clause is retrospective in nature and stops state assembly from constituting oversight committees for Delhi’s administration and stipulates that presently existing committees will become void once the act is enacted. According to Ministry of Home Affairs, this addresses the ambiguities in the interpretation of the legislative provisions. On the other hand, it would deprive the Legislative Assembly of its power over subjects like public order, land, police and services. 

The act reverses the clause of Article 239AA which mentions that Council of Ministers shall aid and advise LG on matters relating to the powers conferred upon him and astronomically expands the LG’s powers with the modification that LG’s concurrence is needed before the elected government implements its legislative or policy agenda. Furthermore, now onwards, all the executive actions would be taken on the name of LG. The act would promote harmonious relations as per of MHA’s reply speech, but the amendment is reflection of ongoing strife between Central government and Delhi’s Legislative Assembly.

The Statement of Object and Reasons mentions Delhi’s status to be a Union Territory. But, Article 239AA of the Constitution provides an elected legislature. Also, Sixty-ninth Constitutional amendment act, 1991 and Government of NCT of Delhi Act, 1991 which established the Delhi legislative assembly with Chief Minister and Council of Ministers defy Delhi’s status to be a UT.

Government of NCT of Delhi v. Union of India & Anr. (Delhi v. LG)

The hon’ble Supreme Court interpreted the constitutional legitimacy of government through interpretation of Articles 239AA and 239AB which dictates “special provision for Delhi”. The court recognised two aspects to address the conflict. First, as per of Art. 239AA (4), in case of difference of opinion, ‘the LG’ refers to ‘the President’. While dealing with uncertainty regarding executive power, the court established that the “executive power of the Government of NCT of Delhi is co-terminus with legislative power of the assembly”. With this reiteration, there was barely any possibility left for overriding authorities. Second, the ruling restored principles of federalism and democracy by propounding that elected cabinet must perform “collective responsibility” conferred on it by collective will of people. This was to restore faith in people’s will. 

It was held in the case that LG is needed to exhaust process of dialogue and discussion as mandated by Delhi Transaction of Business of Government of NCT of Delhi Rules, 1993. The motive for proposing these rules was to keep LG notified of proposals, agendas and decisions to keep her acquainted with the business carried out by council of ministers. The act gives extensive powers to LG whereas the judgment held that the legislative power of NCT of Delhi is co-extensive with executive power of LG and therefore, LG should act on aid and advise of council of ministers. The court cited principles of Collective Responsibility and Co-operative Federalism which would ensure co-operation and collaborative functioning between ruling dispensation at Centre and Government of NCT of Delhi.

Opposition’s Contentions 

All the opposition parties stood against the act when it was presented as bill in Rajya Sabha. Leader of Opposition in the House, M. Mallikarjun Kharge uttered that government through handing all powers to nominated LG is trying to reduce the powers of elected representatives. He added that the legislation is unconstitutional as such centralization of power is against the constitutional principles. Sanjay Singh, Member of Parliament from a constituency of Delhi remarked the act as unconstitutional. Referring to Art. 239AA (6), he said that the act violates this constitutional provision as it transfers powers to LG.

Senior Advocate, Abhishek Manu Singhvi remarked “This is the most pernicious unconstitutional bill which this house has ever received” when the bill was presented in Rajya Sabha. He quoted certain excerpts from Delhi v. LG case “the ideas of pragmatic and collaborative federalism will fall on the ground if Union overrides executive powers over legislative powers of Delhi Legislative Assembly” and supports the view.

Chief Minister of Delhi, Arvind Kejriwal termed the developments as a “sad day for Indian Democracy”. Aam Aadmi Party termed the act as ‘unconstitutional’ and remarked it an accept to make Delhi Government “administratively impotent”. 

Since, Opposition claims that the amendment is unconstitutional, Constitutional principles are violated and bill tends to nullifies the judgment. The question thus arises is “Is Parliament bound to follow Supreme Court Judgments?”. The Doctrine of Separation of powers isn’t explicitly written in Constitution but it forms basic structure of Indian Constitution. It’s just a convention to follow this doctrine, latter necessitates each pillar of state to respect the domains and authorities of other counterparts. Parliament has tried to reverse judgments several times. 

Central Government’s Response

Union Minister G Kishan Reddy ascertained that amendment clears ambiguities in the principal act, 1991. Denying the allegations and contentions of opposition, he said that the amendment act clarifies separation of powers in consonance with Supreme court’s directions, which is important to address administrative uncertainties. This would result in improved functioning.

BJP MP Bhupender Yadav insisted that Delhi is a Union Territory whose constitutional head is LG. The act is in accordance to the General Clauses Act, 1897 and further mentioned that head of Central Government is President and of State Government is Governor and according to this analogy, head of Delhi is LG. He proposed that the said restrictions on Delhi’s legislative powers are only standardized by bringing them in consistency with Lok Sabha rules for ‘good governance’. 

Position in other Union Territories

Delhi, Puducherry and Jammu & Kashmir have legislative assemblies. Before 2019, State of J&K had bicameral legislature but the Jammu and Kashmir Reorganisation Act, 2019 replaced it with unicameral legislature when it was given status of a UT. As per of S. 54(3) of the Union Territories Act, 1963, the Representative Assembly was converted into Legislative Assembly of Puducherry.

Governance of these UTs differ. When it comes to law & order and internal security, the Puducherry Police works under the Department of Home Affairs, government of Puducherry whereas Delhi Police is administered by Home Ministry, Central Government. The J&K Reorganization Act makes it clear that ‘Delhi Model’ will be followed for policing and public order, although administration of issues such as land and powers of court isn’t yet clarified.

It’s clear that in none of the UTs with Legislative Assembly except Delhi, LG has been given extraordinary powers as been conferred by GNCTD (Amendment) Act, 2021. This act through giving powers to LG distinguishes it from J&K where ‘Delhi Model’ was followed thus, making administration of all three UTs different and questionable. Why, in a nation with three UTs having Legislative Assemblies have different methods of governance? Is centre’s choice and will of exercising undesirable and undemocratic control over some specific regions justified?

Conclusion

There has been a recent tussle of power between elected government and LG. The Supreme Court reversing Delhi High Court’s rule had clearly stated the norm. The Central Government has taken some drastic measures to have the legislative functioning in in its hand in name of clearing ambiguities in 1991 act. The act reverses Delhi’s quest for statehood and indeed, raises speculations over 

BJP’s disclosure in the past of pushing for full statehood to Delhi. Now, BJP government supports that Delhi hosts the country’s legislature, the seat of the Union Government, the judiciary, diplomatic missions, and other institutions of national importance so it deserves smooth functioning and cannot be subject to misadventures arising from the ambiguities in the roles and responsibilities of its stakeholders. But the opposition is very anxious of Central Government’s stand. The real intentions of the government are revealed through passing an unconstitutional amendment and not providing satisfactory responses to opposition’s contentions. Along with this, the act violates the principles of ‘Collective Responsibility’ and ‘Co-operated Federalism’. The act of passing amendment countering Judgment’s main crux blurs its constitutionality. The different style of governance of other two UTs having Legislative Assembly poses several questions, rendered unanswered by the Central government.

References 

  1.  Government of National Capital Territory of Delhi (Amendment) Act, 2021.
  2. Democratic Government by One Person, Vol. 56, Issue no. 13, EPW’s Journal, 2021.
  3. Special Status of Delhi Government of NCT of Delhi v. Union of India, Supreme Court Observer (April 19, 2021, 11:26 AM), Supreme Court Observer – Delhi Special Status: Judgment in Plain English (scobserver.in).
  4.  GNCTD Bill Unconstitutional: Opp., The Pioneer, GNCTD Bill unconstitutional: Opp (dailypioneer.com), March 25, 2021.
  5. Akshita Sxena, Parliament Passes GNCTD Amendment Bill To Enhance Powers of Delhi Lieutenant Governor, Live Law (March 24, 2021, 9:30 PM),  https://www.livelaw.in/top-stories/parliament-passes-gnctd-amendment-bill-to-enhance-powers-of-delhi-lieutenant-governor-171689?infinitescroll=1.
  6. Rajya Sabha Approves bill Giving Primacy to Delhi LG; ‘Sad Day for Democracy’ Says Kejriwal, The WireIn (March 25, 2021, 11:43 AM), https://thewire.in/government/rajya-sabha-gnctd-bill-passed-delhi-lg-kejriwal-aap-congress-bjp.
  7. Simran, Legislative versus Judiciary, The PRS Blog, Legislature versus Judiciary | PRSIndia, Oct. 4 2011.
  8. Opposition slams GNCTD Bill as ‘unconstitutional’, accuses Centre of practicing ‘coercive federalism’, The New Indian Express, Opposition slams GNCTD Bill as ‘unconstitutional’, accuses Centre of practising ‘coercive federalism- The New Indian Express, March 25, 2021.

This article has been co-authored by Ruchita Yadav and Antriksh Yadav of Dr. Ram Manohar Lohiya National Law University, Lucknow.

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