ANALYSIS OF THE NATIONAL CAPITAL TERRITORY OF DELHI (AMENDMENT) BILL, 2021

The National Capital Territory of Delhi (Amendment) Bill, 2021(herein referred as the GNCTD bill) was introduced in the Lower House of Parliament, i.e., Lok Sabha on 15th March to amend the pre-existing bill of 1991. It was subsequently passed by both the Houses of the Parliament on 22nd and 24th of March, 2021 respectively. Further, for a bill to become an act it shall be presented to the President for his/her assent after it has been passed by the houses as per article 111 of the Indian constitution, 1949. The impugned bill, similarly, was accorded the President’s assent on 28th of March, 2021 through a gazette notification thence, on that account, enacted as law.

Constitutional history of Delhi

The power struggle in the national capital between the legislatively elected government and the Lieutenant governor is still hot when it has been decades since it caught the fire and yet it does not seem to cool off any soon. It is the ambiguous bare text or the subjective exegesis by the judicial experts, overlapping provisions are still creating political tussle in the capital region. Ergo, before jumping on to the observations made by the judges and the current state of imbalance, let us have a gander at the constitutional background of the national capital territory which neither granted it a full statehood nor left it to be a union territory.

The States Reorganization Act, 1956 instituted the capital of the province, i.e., Delhi, a Union Territory to be presided by a Chief Commissioner which later on christened as the Governor. Article 239 in the Constitution of India bestows upon the President, the authority to appoint a Governor as an administrator for the Union Territories who will act ‘independent of his council of ministers’. 

However, article 239AA inserted by the Constitution (sixty-ninth amendment) act, 1991 endowed Delhi with special provisions and made it democratically represented by an elected government. It also made the administrator appointed under article 239 to be referred to as the Lieutenant Governor (herein referred as LG).  

The highlights of the 1991 amendment which unsettled the whole scenario and to an extent imperilled the whimsicality of the Centre are-

  1. As per clause 3(a) of the article 239AA, the Legislative Assembly of the capital can make laws with respect to any of the matters enumerated in the state or concurrent lists under schedule VII excluding the matters regarding land, police and law & order which were to be governed by the Centre through the LG.
  2. There shall be a Council of Ministers headed by the Chief Minister of the state which will ‘aid and advise’ the LG on the matters set forth above as per clause (4) of the same article.
  3. Moreover, the proviso to clause (4) warrants the Lieutenant Governor to refer ‘any matter’ to the President of India for his/her decision if there is a clash of opinion between the governor and the ministers (Council of Ministers headed by the Chief Minister of the State). The LG, as a matter of law, is bound by the decision of the President given thereon.

This paradigm shift in power by the 69th amendment by leaving few matters in the hands of the executive while endowing the rest to the Legislature was carried out to ease the working in the NCT region while being mindful of its status as the nation’s capital.

Nevertheless, the 2015 notification issued by the Central Government ousted the 1988 notification which necessitated the LG to consult the CM concerning the matters exclusively reserved for the executive viz, land, police and law & order. On the contrary, the 2015 order cut the LG sheer slack and entrusted him/her with the preference to consult or not consult the Chief Minister with the subjects in question.

 The notification was followed by the Delhi High Court judgment in 2016 where the bench by upholding the above notification opined that LG is independent of the consultation and in fact, she/he is not even bound by the ‘aid and advice’ given by the council of ministers. Aggrieved by the pronouncement of the HC, Delhi government moved to the apex court via its appellate jurisdiction which resulted in the following observations. 

Observations by the Apex court in the 2018 judgment of the GNCT of Delhi v. Union of India & Ors.

The mandatory character of the ‘aid and advice’ by the council minister was brought to light by the judges while manifesting the objective and purpose behind the insertion of article 239AA in the constitution by way of the 1991 amendment. The bench asserted, “LG is an administrative head in the limited sense, and is not a governor. He is bound by the aid and advice of the government in areas other than those exempted.”[1] Therefore, at variance with High Court judgment, the apex court insinuated that the aid and advice by the council of ministers subjugates the LG and they must act in congruence with the principle of collective responsibility. 

The bench stressed that the LG and his/her ministers must be cognizant of the concept of collaborative federalism and constitutional balance. Their powers are co-extensive in nature as India follows the Westminster system subject to its own unique structure. It proceeded further to state that this balance safeguards the constitutional status of the government and its ministers in the state while being heedful of the significance of the Union participation in the capital’s governance. Inferring, the legislative assembly is refrained from making any legislation with respect to the matters of land, police and law & order so that the Parliament can have a stake in it even though they are matters enumerated in the state list. 

Further, while interpreting the proviso to clause (4), the then Chief Justice Deepak Misra and the Justices, Sikri and Khanwilkar contended that the LG can exercise the power of the proviso to art. 249AA (4) (refer any matter to the President) ‘only in exceptional circumstances’ and not as a matter of routine. While emphasising on the words, ‘any matter’, the bench commented that this cannot be interpreted as ‘every matter’ and must be used sparingly based on a sound rationale and applicability of mind.  Now, what is exceptional and what is not, has also not been commented upon by the judges. 

On the other hand, Justice D Y Chandrachud, to the rescue, tried to make it comprehensible by postulating that if a decision taken or is to be taken by the state legislative assembly meddles with the interests of the union government in Delhi, it can be corresponded as a matter of national importance/interests under the proviso.

Furthermore, the 1993 rules[2] were also highlighted by way of the impugned judicial pronouncement that the power under the proviso can only be exercised after exhausting process of dialogue and discussion and if that doesn’t result in any harmonious conclusion, the matter shall be referred to the President and it cannot be in any form an independent decision on the part of the governor to take any such decision.  The independent authority to take decisions vests in the LG only for the subject matters u/a 239 which are outside the jurisdiction of the state government.

Why was Delhi not granted the statehood?

As Chandrachud, J. in his concurring opinion catered this issue by delineating the reasoning behind that Delhi, being the national capital, was the dominant impetus why it cannot be construed as a state like the rest of the 29. As absolute statehood will denude the central government from executing some significant decisions with regards to the capital territory. The judgment also referred to the report submitted by the Balakrishna Committee in December 1989 that ‘the national capital belongs to the nation as a whole’ and therefore it cannot be accorded with this demand.[3]

Therefore, neither the legislative assembly in the territory has the equivalent powers as to that of any state nor the LG has the same status as that of a governor of a state as he’s more than the titular head but bound by the aid and advice.

 The pretext behind the above observations was to highlight the need to safeguard the requisite interest of the Union Territory and the Federal balance under the basic structure of the constitution as the bench advanced that this unrestrained transfer of cases to the President can threaten the independence of the state administration as it will hand over the control to the centre in a way.

What’s new in the 2021 Bill?

The GNCTD bill(now an act) propounded numerous amendments viz.-

  • The impugned bill proposed that the government shall be the lieutenant governor, meaning thereby, the label‘government’ going to be construed as the ‘lieutenant governor’ in all the laws made by the Legislative Assembly. 
  • The amendments further confer the power upon the lieutenant governor to reserve the bill for the consideration (assent) of the President which ‘incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly’.
  • The impugned bill also revised that the ‘rules of procedure’ made by the state legislative assembly for the regulation and conduct of business must be in compliance with the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’
  • It also goes on to hold the rules void which the Legislative Assembly has made prior to the commencement of the act into operation to enable itself or its Committees to: (i) consider the matters of day-to-day administration of the NCT of Delhi or (ii) conduct any inquiry in relation to administrative decisions. 
  • The proposed legislation in question lastly, amends section 44 of the principal act and necessitates the government to procure LG’s opinion on their decisions before executive action is taken on them and if taken, shall be issued in the name of the LG via general or special order.

Are the new Bill and the Supreme Court judgment incongruous with each other?

 Perusing the amendments one at a time, the latest bill by replacing the state legislature and bringing the lieutenant governor under the umbrella of ‘government’ in all the legislations have not only seem to override the Supreme court judgment but also the significant principles embedded under the constitution of India. This exact amendment embodies the element of autocracy and anti-federalism owing to the fact that a democratically elected government and its ministers has been made so trivialized and downgraded against an appointee of the central government. 

Further, it also invalidates the text of article 239AA (4) because if taken the proposed amendment into consideration, the LG does not require to adhere to the decision of the assembly as he/she is not the elected government and can act upon his/her discretion irrespective of anything.

Moving on to the next amendment which calls for the rules of procedure and the conduct of business in the legislative assembly to be in compliance with the rules and conduct in Lok Sabha. The Union Minister G Kishan Reddy on behalf of the government gave a mention to the above amendment in the Parliament and voiced that it has been proposed in the light of ‘good governance’, meaning thereby, it is there to standardize the governance of the State Legislature with that of the Parliamentary house. The author, at this juncture, asks only two questions, what about the uniformity of the other states and UTs? And the fact that Delhi is the nation’s capital, can the central government extirpate the privileges authorized to the house of legislature by the constitution?

Article 118 & 208 respectively lays down the guidelines for the rules of procedure to be made by the houses of parliament and state legislatures. The provisions nowhere ask for uniformity between the two, thereby implying, that after amending the GNCTD act, isn’t the central government impinging upon the independency and imposing unconstitutional ramifications on the inherent right to formulate rules and conduct proceedings in the state houses?

Furthermore, another amendment restricts the Delhi government from making rules concerning the day-to-day administration along with this, it also imposes limits on the government from conducting inquiries with regards to the executive functions and any of the pre-existing rules will be void once the act sanctions. 

From a plain reading of the above amendment, one from its common parlance can figure this out that the central government by way of this bill is trying to cripple down the state control in order to seize hold of it. The widening of the LG’s power by superseding the legislature’s is against the basic structure of the constitution.  As it is customary to everyone’s knowledge that the basic structure (which cannot be amended irrespective of any circumstance as substantiated by the landmark judgment of Kesavananda Bharati case)[4] imbibes in itself the doctrine of separation of power which is contingent upon the principle of checks and balances. The constitution encompasses and promotes the system of checks and balances amongst its three organs namely, the judiciary, the legislature and the executive by putting them on the same pedestal, to circumvent the dominance of one over the other. 

The Parliament of India has been conferred upon the responsibility to overlook the executive actions and decisions and hold it accountable if they are at odds with the law, in doing so, the executive has been made answerable to the legislative by the constitution by way of clause (2) article 164. It is the function of Parliament (the legislative) to exercise political and financial control over the executive and to ensure parliamentary surveillance of administration. Therefore, abridgment of this intrinsic parliamentarian right does not give the impression of providing clarity to the existing laws but contrariwise.

Lastly, it makes the LG’s opinion in every action by the State Legislature indispensable. Implying, before a decision by the state government comes into action, it has to cross another obstacle in the form of LG’s opinion (assent). If the stumbling block (the task of entrusting the order/notification with governor’s assent) is not overcome, the impugned order/notice will lapse. This amendment makes it arduous for the legislature to take any decisions and call the shots and pull the strings on its own especially concerning a matter of exigency and utmost gravity. In addition to that, there is no stipulated time limit provided for the LG to come upon a conclusion and grant his/her concurrence to the legislature which put it together as arbitrary.

Now, as compared to the pronouncement made in the 2018 judgment, the apex court while substantiating the clause (4) to article 239AA observed that the Delhi government can govern and execute its decisions without obtaining LG’s point of view and in a case of disagreement, the LG may refer the matter to president but only in exceptional scenario. On that account, it would not be wrong to say that the above amendment is averse to the apex court judgment.

That being said, although the judges strived to untangle the nets of exceptional circumstances and discretionary power of the LG, still it was nebulous and not exhaustive. Therefore, the proposed amendment may provide clarity as there is at least a definite law which lays down some categorical procedure to be followed. The next question which comes in one’s mind is, can the legislature override a judicial decision by bringing amendments in a law? The answer is, actually it can. Whatever the intent maybe, if a new legislation gets passed through both the parliamentarian houses and granted president’s assent, it by all means becomes a law and cannot be said to be unlawful or invalid unless on being challenged in court it is found to be against the constitutional principles.

Further, clause (7) of article 239AA empowers the Parliament to enact any supplementary law to give effect to the matter incidental and consequential under the other clauses contained in article 239AA. Therefore, it is worth noting that the GNCTD act of 1991 was legislated as an aftermath of the above provision and for the same reason the application of this act is limited by the content of article 239AA. Since, it is imperative under article 239AA for the LG to act on aid and advice of the Council of Ministers, this proposed amendment cannot cross this threshold limit and stands in conflict with the parent law.

Conclusion

The Union Ministers contended during the parliamentary sitting that the bill is only enhancing the power of the Governor and providing clarity to the judgment given by the Supreme Court judges; it is unquestionably widening the jurisdictional domain for the LG but to draw the inference, one has to decide for oneself if the government really is giving clarity to the existing laws or emasculating the State Government. 

Author: Mahima Tayal (III-year, University School of Law and Legal Studies, GGS Indraprastha University (New Delhi))


[1] State (NCT of Delhi) v. Union of India & ors. (2018) 8 SCC 501.

[2] The transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.

[3] Government of India, Report: Committee on Reorganisation of Delhi Set-Up (Ministry of Home Affairs, 1989).

[4] Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.

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