Government of National Capital Territory of Delhi (Amendment) Bill, 2021 Center vs State Conflict

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Introduction

The tussle of powers between the state and the central government of Delhi has been a debatable issue since the 1990s. The recent legislative action initiated by the central government in the form of Government of National Capital Territory of Delhi (Amendment) Bill, 2021 has opened up a lot of discussions on it again. It is important to understand its historical context. Delhi became a union territory by passing the 69th Amendment Act and inclusion of Articles 239AA[1] and 239BB[2] in the Constitution. Simultaneously, the Government of National Capital Territory of Delhi (GNCTD) Act was passed in order to provide a framework related to the functioning and powers of the legislative assembly and the lieutenant governor. According to this act, before the amendment, the legislative assembly of Delhi has the authority to make laws on all matters concerning the state, except for public order, police and land. However, this has been amended by the introduction of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 in the parliament by the Union Minister of State for Home, G. Kishan Reddy. This bill seeks to amend Section 44[3] of the original act by adding a clause according to which before taking any executive action, the opinion of the lieutenant governor shall be seeked for all matters. This changes the interpretation of the supreme court judgement in 2018, in the case NCT of Delhi v. Union of India. This article will analyze this bill, scrutinize the 2018 judgement of the supreme court and delve into both sides of the debate and study its points of agreements and contentions.

Analysis of the Bill

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was passed on 24th March, despite the contentions and eventual walking out of the opposition from the parliament. The opposition consists of the Chief Minister of Delhi, Mr Arvind Kejriwal and his party, the Aam Aadmi party which were reelected to Delhi in 2018. Delving into its history, Delhi was made a union territory in 1991 with the passage of the 69th Amendment Act. The national capital and its power structure are vested within these three important provisions- Article 239AA[4] of the Indian Constitution, The Government of National Capital Territory of Delhi Act 1991, and the Transaction of Business Rules 1993. As per these existing provisions the Delhi Government can pass orders on all matters except for public order, police and land. The passage of the recent bill aids the Lieutenant Governor with discretionary powers on all matters, including those which earlier came under the ambit of the Delhi Legislative Assembly. The bill makes the proposes the following changes-

The expression “Government” referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.”[5]

“Provided that 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 decisions, and any of the rule made in contravention of this proviso, before the commencement of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, shall be void”[6]

After the words “conduct of its business”, the words “which shall not be inconsistent with the Rules of Procedure and Conduct of Business in House of People”[7]

“Provided that before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, State Government, Appropriate Government, Lieutenant Governor, Administrator or Chief Commissioner, as the case may be, under any law in force in the Capital, the opinion of Lieutenant Governor in term of proviso to clause (4) of article 239AA[8] of the Constitution shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.”.[9]

The reasoning provided by this bill states that the previous act had certain lacunas which included a lack of a proper structural mechanism in order to address the issues stemming from Section 44[10]. Further there existed a lack of clarity on the classification of proposals on the basis of requiring the lieutenant governor’s assent.

The bill states the promotion of harmonious relations between the legislature and the executive and clear defining of the responsibilities of the elected Government and the Lieutenant Governor as its aim.

Scrutiny of the 2018 Judgement

In 2018, the Supreme Court in the case of Govt. of Nct of Delhi vs Union of India[11] ruled that that, despite the fact that the government was required to keep him or her informed of its decisions under Article 239AA[12] of the Indian constitution, Delhi’s lieutenant governor had no independent decision-making powers and was required to follow the help and advice of the chief-minister-led council of ministers of the Government of Delhi on matters that the Delhi Legislative Assembly could legislate on, namely, all items on the agenda of the Delhi Legislative Assembly.[13]

The Lieutenant Governor was also required to obey the president’s instructions on matters referred to him, according to the court.[14] While the court upheld the lieutenant governor’s right to seek the president’s opinion in the event of a disagreement with the government, the president, who is bound by the prime minister’s Union Council of Ministers’ aid and advice, will be the final authority in the event of a conflict, with his or her opinion binding on both the Lieutenant Governor and the Delhi government.[15]

The court, on the other hand, did not describe “trivial” differences of opinion. In the governance of the National Capital Territory of Delhi, the court also ruled that “[t]here is no space for absolutism and there is no room for anarchism as well.” At the same time, the supreme court ruled that, despite its special status, Delhi was not a state, citing the Balkrishnan Committee’s 1987 report; thus, unlike state governors, Delhi’s lieutenant governor was both a constitutional figurehead and an administrator.[16]

The judgement does not change any legal position. The Lieutenant Governor ‘s relationship with the elected government of Delhi is still governed by Articles 239[17], 239A[18], and 239AA[19] of the Constitution, the National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.[20] In appropriate situations, the Lieutenant Governor can also stall the elected government’s decisions by stating a difference of opinion and referring the matter to the President. In such situations, he will be bound by the President’s orders rather than the NCT Government’s decision.[21]

In this case, the Constitution Bench has only explained the legal situation and outlined the general contours and parameters of the relationship between the Lieutenant Governor and the elected government of NCT Delhi as contemplated by the constitutional provisions of the NCT Act, 1991, and the Transaction of Business Rules, 1993.[22] It partially overturned the Delhi High Court’s August 2016 decision declaring Lieutenant Governor to be the administrative head of Delhi.[23]

Via the judgement, the Supreme Court requests that the Lieutenant Governor refrain from acting in an obstructionist manner.[24] Also, the court makes it clear that he cannot use his powers under Article 239AA[25]‘s proviso on a regular basis, and that any minor difference is not covered by the proviso.

 Before sending a matter to the President, he cannot function mechanically and must use his mind. The Constitution Bench stated that the Council of Ministers, led by the Chief Minister, should be governed by principles and prudence, while acknowledging that the NCT of Delhi is not a state.[26]

In the matter of the issues between the Lieutenant Governor and the government, the Bench stated that all such issues posed in various petitions, including the Ministry of Home Affairs notification of 2015 with regard to union territories and service matters, will be determined separately by the division bench concerned on the basis of the constitutional criteria laid down by the Constitution Bench.[27]

The Debate

The amended Act describes “government” in Delhi as the “Lieutenant Governor,” and the Lieutenant Governor’s opinion “shall be sought” before taking any executive action on decisions made by the Delhi government’s Council of Ministers. The Supreme Court ruled in July 2018 that while the Lieutenant Governor must be notified of Delhi cabinet decisions, his approval is not required except in the cases of police, public order, and property.[28]

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, introduced in Parliament, according to some experts, is fully constitutional. The Supreme Court’s order acts as a clarification regarding the privileges of the Delhi Government and the Lieutenant Governor.[29] There has been no constitutional breach, and because Delhi is a Union Territory, the Lt Governor’s and the Delhi Government’s rights have been clearly established in advance.

Delhi is a Union Territory ruled by the President and Lieutenant Governor. The state government’s privileges are restricted in such a case. Because the NCR is a National Capital Region (NCR), the Parliament has extra powers to amend or create new laws. Despite the fact that the state government’s authority has been clarified, the powers of the Lieutenant Governor have remained unclear. The object of this amendment bill is now to clarify the Lieutenant Governor’s powers.[30]

On the other hand the Supreme Court has long held that legislative assemblies’ powers to enact legislation include the ability to venture beyond the limits of those powers by accident. As a result, even though a statute deals with a different subject by accident, it is not inherently unconstitutional.[31] Clause 3, which amends Section 24[32] of the GNCTD Act, requires the Lieutenant Governor to refer a Bill to the President even though he believes it can fall beyond the reach of the Assembly’s powers. This is in direct contravention to Article 239AA[33], as well as the principles of federalism.

Another contention with regards to the Bill that has been raised is an amendment to Section 33 of the Act, which relates to the authority of the DLA when it comes to making rules for the conduction of its business. The amendment holds that said rules will not cover the daily administrative decisions of Delhi. However, it does not define the words “day-to-day management” and “administrative decisions.” These words aren’t even specified in the GNCTD Act. This also clearly undermines one of Parliamentary democracy’s most fundamental features: the executive’s accountability to the legislature.[34]

In addition, the Act overturns the Supreme Court’s judgement in NCT of Delhi (2018) and reinstates the decision of the Delhi High Court, which effectively transformed Delhi into a princely state in which the elected Chief Minister and his council of ministers could make no decisions and could only advise the Lieutenant Governor, who had real authority. Of course, the form and intent of Article 239AA[35] of the Constitution, as interpreted by the Supreme Court in 2018, are entirely incompatible with this. The GNCTD Amendment Act appears to be an attempt to unsettle the agreed constitutional stance on the powers of Delhi’s elected government and the Lieutenant Governor by amending the Constitution indirectly.[36]

Conclusion

Delhi’s unique status as the country’s capital necessitates a radical rethinking of the federal contract that currently governs its executive and legislative powers. The contract appears to be biased against the elected government on paper. However, over the past 20 years, the Centre, through its representative, the Lieutenant Governor, and the Delhi government appeared to have established a working relationship, if not a partnership, whose benefits are still being felt by the city’s residents — the conversion of the city’s public transportation fleet to environmentally friendly CNG, the introduction of private players in the power sector, and other initiatives.[37]

The Supreme Court, in its 2018 judgement, that clarified the powers of Delhi’s Lieutenant Governor and its council of ministers signalled the beginning of a time of relative calm. The Supreme Court’s decision that the elected government has pre-eminence in all matters other than police, public order, and land enabled AAP to transform its welfarist agenda into policies, such as sewage system mechanisation, free bus rides for women, and free energy for those who use less than 200 units of power. During the crucial time of the pandemic last year, the L-G and the Delhi government were on the same page, with the exception of a few instances.

The question of whether the amendment proves to be beneficiary or brings about more chaos in the administration of the Capital of India is best left to the dictates of time.


[1] The Constitution of India, art. 239AA.

[2] The Constitution of India, art. 239BB.

[3] The Government of National Capital Territory of Delhi Act, 2021.

[4] The Constitution of India, art. 239AA.

[5] The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, § 2.

[6] The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, § 4 (a).

[7] The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, § 4 (b). 

[8] The Constitution of India, art. 239AA.

[9] The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, § 5.

[10] The Government of National Capital Territory of Delhi Act, 2021, § 44.

[11] Government of Nct of Delhi vs Union of India, (2018) 8 SCC 501.

[12] The Constitution of India, art. 239AA.

[13] Lieutenant Governor bound by ‘aid and advice’ of elected Delhi govt., rules Supreme Court, available at: https://www.thehindu.com/news/national/l-g-bound-by-aid-and-advice-of-elected-delhi-govt-says-sc/article24328937.ece (last visited on May 3, 2021).

[14] SC verdict on power tussle in Delhi explained, available at: https://www.tribuneindia.com/news/archive/nation/sc-verdict-on-power-tussle-in-delhi-explained-615094 (last visited on May 3, 2021).

[15] Delhi power tussle: Between the Supreme Court’s lines, available at: https://indianexpress.com/article/explained/arvind-kejriwal-delhi-lg-standoff-anil-baijal-supreme-court-narendra-modi-govt-5246127/ (last visited on May 3, 2021).

[16] Supreme Court to Delhi LG: Don’t play decision-maker or obstructionist, available at: https://www.telegraphindia.com/india/supreme-court-to-delhi-lg-don-39-t-play-decision-maker-or-obstructionist/cid/1350050 (last visited on May 3, 2021).

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

[18] The Constitution of India, art. 239A.

[19] The Constitution of India, art. 239AA.

[20] Supreme Court reserves judgement on please on Delhi-Centre power dispute, available at: https://www.dnaindia.com/india/report-supreme-court-reserves-judgement-on-pleas-on-delhi-centre-power-dispute-2565610 (last visited on May 4, 2021).

[21] Special Status of Delhi- Government of NCT of Delhi v. Union of India, available at: https://www.scobserver.in/court-case/special-status-of-delhi (last visited on May 4, 2021).

[22] Key arguments in Delhi govt vs LG case, available at: https://www.thehindu.com/news/national/key-arguments-in-delhi-govt-vs-l-g-case/article24327768.ece (last visited on May 4, 2021).

[23] SC reserves for verdict on Delhi-Centre power spat, available at: https://www.thehindu.com/news/national/sc-reserves-for-verdict-on-delhi-centre-power-spat/article21281816.ece (last visited on May 4, 2021).

[24] Government of Nct of Delhi vs Union of India, (2018) 8 SCC 501.

[25] The Constitution of India, art. 239AA.

[26] Delhi LG has more powers than governors of other states: Supreme Court, available at: https://www.livemint.com/Politics/5WYNjHltxxN61TFyZNQCdJ/Delhi-LG-has-more-powers-than-governor-of-other-states-Supr.html (last visited on May 4, 2021).

[27] Supreme Court verdict on AAP government vs Delhi LG: Key points, available at: https://timesofindia.indiatimes.com/india/sc-verdict-on-aap-govt-vs-delhi-lg-key-points/articleshow/64851878.cms (last visited on May 4, 2021).

[28] Explained: What does amended GNCTD Act mean for Delhi?, available at: https://www.cnbctv18.com/politics/explained-what-does-amended-gnctd-act-means-for-delhi-9094321.htm (last visited on May 5, 2021).

[29] GNCTD bill absolutely constitutional, says expert, available at: https://react.etvbharat.com/english/national/city/delhi/know-the-advantages-and-disadvantages-of-gnctd-amendment-bill-from-constitution-expert-subhash-kashyap/na20210317190521368 (last visited on May 5, 2021).

[30] Parliament Passes GNCTD Amendment Bill To Enhance Powers Of Delhi Lieutenant Governor, available at: https://www.livelaw.in/top-stories/parliament-passes-gnctd-amendment-bill-to-enhance-powers-of-delhi-lieutenant-governor-171689 (last visited on May 5, 2021).

[31] From “Trishanku” to a puppet- How Modi govt’s GNCTD Bill undermines Delhi govt, available at: https://theprint.in/opinion/from-trishanku-to-a-puppet-how-modi-govts-gnctd-bill-undermines-delhi-govt/629384/ (last visited on May 6, 2021).

[32] The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, § 24.

[33] The Constitution of India, art. 239AA.

[34] Explained: All About GNCTD Bill, How It Curtails Elected Delhi Govt’s Power, available at: https://www.outlookindia.com/website/story/web-exclusive-explained-all-about-gnctd-bill-how-it-curtails-elected-delhi-govts-power/378249 (last visited on May 6, 2021).

[35] The Constitution of India, art. 239AA.

[36] Passing of GNCTD Bill frames Centre’s hubris, reverses gains in Delhi’s quest for statehood, undercuts federalism, available at: https://indianexpress.com/article/opinion/editorials/national-capital-territory-bill-passed-delhi-statehood-supreme-court-7245374/ (last visited on May 6, 2021).

[37] DNA Explainer: What is NCT Bill? Here’s why AAP-led Delhi govt is protesting against it, available at: https://www.dnaindia.com/explainer/report-dna-explainer-what-is-nct-bill-heres-why-arvind-kejriwal-aap-led-delhi-government-is-protesting-against-it-2881455 (last visited on May 6, 2021).

Author: Arushi Handa, Maharshtra National Law University Mumbai

Editor: Kanishka VaishSenior Editor, LexLife India.

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