Constitutional Validity of The National Capital Territory Of Delhi (Amendment) Act, 2021

Introduction:

The Indian Constitution is a remarkable document, which contains several notable features forming its core. One among them is the establishment of a federation. A federal structure is the setup of a nation, where the states are given autonomy to deal with issues and minimal interference is exercised by the government at the center. Especially, in a country as diverse and varied as India, it is highly important to give maximum autonomy to states, to facilitate smooth administration and management of affairs.

In the landmark case of Keshavananda Bharti v. the State of Kerala[1], it was laid down that the basic structure of the Constitution ought to be protected at all costs. From the case, a few basic features of the Constitution were identified, and there have been a few additions to it with time. A few of them are the supremacy of the constitution, secular nature of the constitution, republican and democratic form of government, separation of powers between the three institutions – legislature, executive and judiciary, and the federal structure of the constitution.[2] Hence, from the provisions of the Constitution and the verdict delivered by the largest constitution bench in the history of the Indian judicial system, it is evident that federalism is indeed an extremely crucial element in the country’s framework.

In the S. R. Bommai case [3]as well it was observed by the judges, that the provision of greater powers to the central government does not imply that the powers of the states are insignificant. In matters allocated to them, the decisions of the states are treated to be final. All these principles of federalism apply to the states and some extent to the union territories as well.

With the passing of the National Capital Territory of Delhi (Amendment) Act, 2021, the debate around federalism has been reignited. This amendment deals with changes in the provisions of the Government of National Capital Territory of Delhi Act, 1991. This was originally legislated to provide a framework for the legislative assembly, and the government of Delhi and foster better administration.  In order to understand the stir around the amendment, it is imperative that one understands the position of the government, prior to the enactment of the Act.

Provisions conferring power to the government of Delhi:

The Government of National Capital Territory of Delhi Act, 1991 comprehensively covers all the aspects related to the working of an elected government to manage its affairs and lays down the relationship shared by the Lieutenant Governor and the legislative assembly. The Lt. Governor can reserve bills for the consideration of the President if in any way the bill endangers the position of the High Court, if an order to reserve the Bill is made by the President himself, provisions relating to salaries and allowances of the Speaker, Deputy Speaker and members of the legislative assembly, or dealing with the official languages of the Assembly or the NCT of Delhi.  [4]

A conflict like that of the present nature arises between the government of Delhi and the Lt. Governor mainly due to the co-existence of Articles 239 and 239AA, inserted through the 69th amendment to the Constitution. According to the provisions of Article 239, the Lt. Governor of a Union Territory is empowered to act independently of his council of ministers, in matters concerning the administration of the territory[5], and these powers are duly vested with the Lt. Governor of Delhi as well.  On the other hand, Article 239AA of the Constitution endows Delhi with a special status and provides for a legally elected government.[6] This created a tussle of power regarding the administration of Delhi between the two bodies. The enactment of the GNCTD Act, 1991, further amplified these amendments to the Constitution.

Background to the National Capital Territory of Delhi (Amendment) Act, 2021:

The constant struggle for power was finally brought before Supreme Court in 2018. The case Government of NCT Delhi v. Union of India[7] brought much-needed clarity to the position of the government and the Lt. Governor, and the relationship shared by the two bodies. The 5 judge bench comprising of Chief Justice Dipak Misra, Justices D Y Chandrachud, A M Khanwilkar, Ashok Bhushan, and A K Sikri unanimously held that the Chief Minister, and not the Lt. Governor, is the executive head of the government.

The judgment focused on three main constitutional questions. The first one was regarding the status of Delhi under the Constitution. The Chief Justice held that though Delhi is not recognized as a state, it did certainly enjoy a special status. J. Chandrachud further stated that the administration of Delhi under Article 239(1) is different from Article 239AA, which provides for an elected legislature. Hence, Delhi could not be considered a Union Territory as well, where the Lt. Governor was the administrative head. [8]

The second question was pertaining to whether the Lt. Governor was required to act on the ‘aid and advice of the council of Ministers. It was held that the executive power of the Delhi government had to co-exist with the legislative power of the Delhi Legislative Assembly. The principles of ‘collective responsibility and ‘co-operative federalism’ were invoked to support the decision. The cabinet form of the government was also considered to be a basic feature of the Constitution by Justice Chandrachud.[9] Hence, it was concluded that the Lt. Governor was bound by the aid and advice of the Council of Ministers.

The last and third question is pertaining to the reference of matters to the President by the Lt. Governor. Clause (4) of Article 239AA allows the Lt. Governor to reserve “any matter” for the consideration of the President, in an event of a difference of opinion between the Lt. Governor and the Council of Ministers. The Apex Court held that ‘any matter’ could not be interpreted to mean ‘every matter’, and a reference should be made only in exceptional situations when the difference in opinion is a genuine one. Justice Chandrachud went on to add that only matters of vital national interest should be referred to the President for his consideration. This should be done only as a last resort, after exhausting all possible options of resolving the matter between the two bodies. [10] It was held that the concurring opinion of the Lt. Governor was necessary only in issues of police, public order, and land. The Court also stated that all the decisions taken by the Council of Ministers have to be communicated to the Lt. Governor as well. [11]

After the verdict, the government stopped sending files relating to executive matters to the Lt. Governor. All decisions though communicated to the Lt. Governor were not always before its implementation.[12] This led to the birth of the National Capital Territory of Delhi (Amendment) Bill, 2021, which subsequently became the law.

Highlights of the National Capital Territory of Delhi (Amendment) Act, 2021:

The National Capital Territory of Delhi (Amendment) Bill, 2021 was passed by the Lok Sabha on 22nd March, 2021. The Bill was also passed and approved by the Rajya Sabha on 24th March, 2021, by a voice vote. During the voting procedure, 83 members were in favor, while 45 of them were against it with 0 abstentions.[13] The Bill was met with major protest by the Opposition and even staged walkouts. The Union Minister of State for Home Affairs, G Kishan Reddy stated that the Bill was necessary to bring transparency and clarity in the governance of Delhi, and ensure public accountability. [14] After receiving President Ram Nath Kovind’s assent the Bill became law on 29th March, 2021.[15]

There are multiple changes that have been made to the Act of 1991 through the amendments. The meaning of ‘government’ under Section 21 of the 1991 Act was edited. [16]The amendment provided that the word ‘government’ would imply the Lt. Governor in any law passed by the Legislative Assembly.[17] Secondly, Section 33 was also amended which dealt with the rules of procedure. The Act confers the power to make rules regarding the procedure to the Legislative Assembly. The amendment states that any such rules made have to be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.[18]

By adding a clause to extend the meaning of Section 33, the Legislative Assembly is prohibited from making any rule to enable itself or any of its Committees to (a) consider the matters of administration of the national capital territory of Delhi and (b) conduct any inquiry in relation to its administrative decisions. Furthermore, the provisions of the amendment state that all the rules made before the amendment stand void. [19]

Section 3 of the Act of 1991 was extended to increase the power of the Lt. Governor, by way of a change in Section 24 of the Act which dealt with assent to Bills. Along with the matters that require the assent of the Lt. Governor mentioned in the original Act, it was also stated that any legislation falling outside the purview of the powers conferred on the Legislative Assembly will also require the assent of the Lt. Governor.[20]

Through Section 5 of the amendment Act, an additional clause was added to Section 44 of the Act of 1991. As per the newly introduced clause, it makes it mandatory for the government to obtain the opinion of the Lt. Governor on all matters before any executive action can be taken. It also adds that all the executive action taken by the government, whether taken in the advice of the Ministers or otherwise, must be taken in the name of the Lt. Governor. [21]

From a reading of the provisions of the National Capital Territory of Delhi (Amendment) Act, 2021, it is evident that more powers have been delegated to the Lt. Governor. There has been a transition in the role, and the Lt. Governor now plays a more active role in the proceedings and administration of the territory.

Reasons for bringing about the amendments:

The main reason stated by the Home Ministry for enacting the Amendment is that it would bring a great deal of clarity. This move was necessary in order to clear the confusion regarding Section 44 of the 1991 Act. According to the Home Ministry, “There is no structural mechanism provided in the Act for effective time-bound implementation of the said section.”[22] 

The government also mentions in the ‘objects and reasons’ that the Amendment was made to give effect to the 2018 judgment in the Government of National Capital Territory of Delhi v. Union of India[23] case by the Supreme Court.

Concerns raised by the Delhi Government:

The Opposition parties and the party in power at Delhi have outright termed this enactment to be unconstitutional. According to them, the Amendment reduces the power of the democratically elected government in Delhi.[24] The Delhi government placed its reliance mainly on the 2018 judgment[25], which had deemed that the government elected by the people would have a greater rein while dealing with the affairs of the territory, and opinion needs to be sought from the Lt. Governor only on issues like police, public order, and land. Any decision requires assent from the Lt. Governor. Such a compulsory assent makes it difficult for the government to act in situations where expedite responses and actions are required. Further, the assent of the Lt. Governor is not time-bound as well. It was stated to be “an insult to the people of Delhi” as their wishes were not being respected, and that the Centre would now rule Delhi through the Lt. Governor.[26]

Conclusion:

This Amendment has certainly raised questions on the principle of collaborative and cooperative federalism in the country’s structure. It would not be wrong to say that the Amendment has far-reaching implications in the governance of Delhi. The crux of effective administration lies within the hands of a government endowed with a certain degree of autonomy and independence. Curbing the powers of the elected government will throw the functioning of the territory into peril. This is the primary consideration that has to be made by both the central government and the government of Delhi, before taking any further steps.

Good governance is a prerequisite for the peace and prosperity of a region, and healthy center-state relation is necessary to give effect to the concepts of federalism. Hence, keeping in view these aspects, only time will tell, if the Amendment makes decision making more effective or gives way to more complicated clashes.

Directly contravening the federal structure provided in the Constitution and encroaching upon multiple articles enshrined in the Constitution, a prima facie violation can be observed. The validity of the Amendment Act can be challenged because it goes against the basic tenets of the Constitution. But for relief to be granted, the Act has to be challenged before the Apex Court. Judicial intervention is the only available recourse if relief is sought by the Delhi government.

Whether the Lt. Governor works in tandem along with the government, or against it, whether the Amendment will be challenged before the Supreme Court, and if challenged the verdict of the same, are all crucial elements to the continued and effective administration of the territory in future. All the while it is imperative one keeps in mind that Delhi is the national capital of the country, and any decision affecting it will witness a ripple effect in matters concerning the entire country as well.

Author: Haritaa Nair


[1] AIR 1973 SC 1461.

[2]Akshat Mehta and Priyanshi Jain, “Indian Federalism and the National Capital Territory of Delhi (Amendment) Bill, 2021, available at:  https://www.barandbench.com/apprentice-lawyer/indian-federalism-and-the-national-capital-territory-of-delhi-amendment-bill-2021 (last visited on April 19, 2021).

[3] S. R. Bommai v. Union of India, 1994 AIR 1918.

[4] The Government of National Capital Territory of Delhi Act, 1991 (Act 1 of 1992).

[5] The Constitution of India, art. 239.

[6] Id., art. 239AA.

[7] (2018) 8 SCC 501.

[8] Tanvi Singh, “Parliament passes Government of National Capital Territory of Delhi (Amendment) Bill, 2021, available at: https://www.scobserver.in/court-case/special-status-of-delhi/nct-v-uoi-judgment-summary (last visited on April 15, 2021).

[9] Supra note at 8.

[10] Ibid.

[11] Supra note at 2.

[12] “Amendment in the Government of  NCT of Delhi Act”, available at: https://jurisdictioomnis.in/publications/f/amendment-in-the-government-of-nct-of-delhi-act?blogcategory=Legal+Updates (last visited on April 15, 2021).

[13] Anand Patel, Mausami Singh, et. al., “After Lok Sabha, Rajya Sabha too passes NCT Bill despite uproar, walkout from Opposition”, India Today, March 24, 2021, available at: https://www.indiatoday.in/india/story/rajya-sabha-passes-nct-bill-parliament-budget-session-1783238-2021-03-24 (last visited April 16, 2021).

[14] Supra note at 13.

[15]“President Kovind gives assent to NCT of Delhi Act”, Mint, March, 29, 2021, available at: https://www.livemint.com/news/india/president-kovind-gives-assent-to-nct-of-delhi-act-11616989327350.html (last visited on April 16, 2021).

[16] Supra note at 4.

[17] “The Government of National Capital Territory of Delhi (Amendment) Bill, 2021”, available at: https://prsindia.org/billtrack/the-government-of-national-capital-territory-of-delhi-amendment-bill-2021 (last visited on April 17, 2021).

[18] Ibid.

[19] Ibid.

[20] Supra note at 8.

[21] Supra note at 17.

[22] Gunjan Baety, “What’s wrong With the NCT of Delhi (Amendment) Act, 2021: Academike Explainer”, available at: https://www.lawctopus.com/academike/nct-act-2021/ (last visited on April 19, 2021).

[23]  Supra note at 7.

[24] Id at 22.

[25] Supra note at 7.

[26] Karan Manral, “AAP seeks opposition support on NCT Bill ahead of discussion in Rajya Sabha”, Hindustan Times, March 23, 2021, available at: https://www.hindustantimes.com/cities/delhi-news (last visited on April 19, 2021).

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