Constitutional Validity of the National Capital Territory of Delhi Amendment Act, 2021

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INTRODUCTION

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was put before the Lok Sabha on 15 March, 2021. This new Act was introduced to amend certain provisions of the principal Act, i.e. Government of National Capital Territory of Delhi (GNCTD) Act, 1991. The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was passed by the Rajya Sabha on 24 March, 2021 i.e. within the span of nine days and received assent of the President Ram Nath Kovind on 28 March, 2021. The National Capital Territory of Delhi (Amendment) Act, 2021 came into effect on 27 April. The new Amendment Act is been widely criticized for undermining sovereignty of an elected government. Thus, making it anti-democratic. The National Capital Territory of Delhi (Amendment) Act amends Sections 21, 24, 33, and 44 of the principal Act.

Why GNCTD Act, 1991, was Enacted?

The GNCTD Act was enacted in 1991 to “supplement provisions of the Constitution relating to Legislative Assembly and Council of Ministers for National Capital Territory of Delhi.” The process of elected government was enabled in Delhi. The Supreme Court in past also appreciated the 1991 developments stating that Constitution (69 Amendment) Act, 1991 aims to produce a democratic representative government where opinions of majority can be reflected in the laws and policies formulated pertaining to NCT of Delhi.

After Enactment of the GNCTD Act

The GNCTD Act was enacted to reintroduce Legislative Assembly in Delhi which was abolished in 1956. The act have power to make laws on subjects like health, education etc. expect law and order. Through the virtue of GNCTD Act, 1991, Delhi came to be known as National Capital Territory of Delhi. The Lieutenant Governor was made constitutional head of National Capital Territory of Delhi, appointed by the President of India on the advice of the Central Government.

Sixty Ninth Amendment, Act 1992

Through the 69 Amendment Act, 1992 two new Articles 239-AA 239-AB wer inserted in the Constitution of India. After the Article 239-AA was inserted Legislative Assembly shall be formed in the National Capital Territory of Delhi and seats to be filled by the direct election. The provisions of the Articles 324 to 327 and 329 shall not apply to National Capital Territory of Delhi.

According to Article 239-AA 3(a) the Legislative Assembly has power to make laws for National Capital Territory with respect to the matters enumerated in the State List and Concurrent List subject to the provisions of Constitution of India. If a conflict arises between a law made by the Parliament and the Legislative Assembly former shall prevail. The Chief Minister is the head of the Legislative Assembly and[1] s/he should act on the advice of the Lieutenant Governor. Also, if the Lieutenant Governor and the Chief Minister are at conflict on a point the former can refer point of conflict to the President of India.[2]

Under, Article 239-AB, if the President is satisfied on that the governance in the National Capital Territory is not being carried on in accordance with the provisions of Article 239-AA, the President may suspend some or all of the provisions of Article 239-AA for the time specified by the law.

Objective of National Capital Territory of Delhi (Amendment), Act, 2021

The Act will clearly demarcate responsibilities of the elected government and the Lieutenant Governor leading “ harmonious relationship between the legislature and the executive.” The Amendment Act us believed to lead a way for better governance of NCT of Delhi, upgrade implementation of schemes and programmes which are meant for people of Delhi. The amendments are in accordance with existing legal and constitutional provisions and with the judgements of Hon’ble Supreme Court dated 04.07.2018 and 14.02.2019. Also, the amendments to GNCTD Act, 1991, do not interfere with constitutional and legal responsibilities of elected government with respect to the subjects transferred to them under the State and the Concurrent List of the Constitution of India as said by Ministry of Home Affairs (MHA).

Amendments in the GNCTD, Act, 1991

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 amends four major parts of GNCTD Act, 1991 i.e Sections 21, 24, 33 and 44. The amendments to these four major sections gives more discretionary power to the Lieutenant Governor of Delhi while decreasing the ambit in which elected government can exercise it’s power.

The amendment Section 21 states that the expression ‘Government’ in the National Capital Territory of Delhi would mean Lieutenant Governor of Delhi. This undermines the parliament democratic feature.

The GNCTD Act, 1991, gives power to the Lieutenant Governor to reserve some Bills passed by the Legislative Assembly for the consideration of the President. These Bills include-

  1. Bills which may degrade powers or endanger position of Delhi High Court, Bills President may direct to reserve for consideration,
  2. Bills regarding salaries and allowances of the Speaker, the Deputy Speaker and the members of the Assembly and the Ministers or 
  3. those concerning with the official language of the Assembly of NCT of Delhi.                              

Now, the Bill also says that the Lieutenant Governor can also reserve the Bills relating to the matters which fall outside purview of the Legislative Assembly. The law and order, land and police falls outside the purview of the Legislative Assembly.

Section 33(1)(a) of GNCTD Act, 1991, talks about ‘Conduct of Business of the Legislative Assembly.’ The Amendment Bill, 2021, puts forth that the rules to regulate the procedure of the Legislative Assembly shall be consistent with the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’. The State Legislatures are at the liberty to frame the rules regarding functioning of the Legislatures. Infact, the rules of the Delhi Assembly are similar to Uttar Pradesh Assembly. Also, the rules of Rajya Sabha and Lok Sabha are different.

The amendment Section 33(1)(b) prohibits the Legislative Assembly from making rules for itself or its Committees pertaining to day to day matters of the NCT of Delhi or conducting enquiries in relation to administrative decisions. The Bill states that all the such rules made before the commencement of National Capital Territory of Delhi (Amendment) Act, 2021 shall be void.

Section 44(2) amended put forth that it is necessary for the elected government before taking any executive action under clause(4) 239AA have to take prior permission of the Lieutenant Governor even in the matters in which the Legislative Assembly is competent to make laws.

These amendments will make a democratically elected government a subsidiary entity. The elected government is an important instrument through which opinions of citizens are reflected in the policies. But when every policy has to receive prior approval of the Lieutenant Governor there are chances the policy can be sidelined for various political reasons. In democratic regime, monopoly of the Lieutenant Governor over elected government is not a good sign.

Violation of Constitutional Provisions, Supreme Court Judgements and Article 239AA

The National Capital Territory of Delhi (Amendment) Act, 2021 is violative of very spirit of Constitution of India which profess for a democratic and federal form of government. The Amendment Act goes against various provisions of the Constitution of India and judgements of the apex Court.

Violation of Government of NCT of Delhi vs Union of India (2018)

In 2018, a bench headed by five learned judges delivered a landmark judgement Government of NCT of Delhi vs Union of India with clearly defined the ambit of power sharing between Delhi Lieutenant Governor and Delhi Government. In the judgement, the apex Court stressed on the relevance why a special status has been given to National Capital Territory of Delhi under 239AA of Indian Constitution. An expert from the judgement clears the above statement-

“The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinions in-laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the constitution. For paving the way to realise this real purpose, it is necessary that we give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of our Constitution are reinforced in NCT of Delhi in their truest sense.”

The bench held that the Lieutenant Governor of Delhi has no independent decision making power and his duty is only to aid and advise the Chief Minister and Council of Ministers barring matters related to law and order and police.

The Amendment Act is in contravention to the Supreme Court judgement. The Act strengthens the position of Lieutenant Governor which is elected by the Union Government. The democratically elected Delhi government and the Legislative Assembly are rendered powerless.[3]

To make the amendment in GNCTD Act, 1991, the Parliament has very tactically use the People’s Union for Civil Liberties vs Union of India (PUBL). In this ruling Supreme Court dealt with Whether Parliament can pass a law which can reverse the effect of Supreme Court judgement. The following excerpt from the judgement makes it clear-

“It is a settled principle of constitutional jurisprudence that the only way to render a judicial decision ineffective is to enact a valid law by way of amendment or otherwise fundamentally altering the basis of the judgment either prospectively or retrospectively. The legislature cannot overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the legislature cannot trench on the judicial power vested in the Courts.”

As stated by the MHA, that the amended act is not in contravention with the Supreme Court judgement of 2018 in Government of NCT of Delhi vs Union of India as the basis of the judgement had not been altered. But they have ignored principles of democracy and federalism on which the Supreme Court primarily relied upon. These principles are ignored widely as supremacy has given to Lieutenant Governor of Delhi over elected government.

Violation of Articles 239AA & 239AB

Article 239AA is a supplement legislation to GNCTD Act, 1991. The GNCTD Act cannot go beyond the Article 239AA. The Supreme Court has “settled principle of law that a legislative proposal cannot be incidental or consequential if the effect of it is against the parent law or Constitution” in judgement Employee’s Welfare Association vs Union of India. The Amendment Act does not alter Article 239AA directly but it goes against various provisions of the Article 239AA.

Article 239AA(6) states that the Council of Ministers shall be collectively responsible to the Legislative Assembly. This gives power to each and every Minister to look into how the policy are is being implemented in the National Capital Territory of Delhi. Unfortunately, the new Amendment take away this opportunity from Delhi Legislative Assembly to enquire into the implementation of the policies which are formulated by them.

Also, under 239AA(4) it goes against the spirit of federal principle where, Union Government appointed Lieutenant Governor is given the front seat and democratically elected Delhi Government is given back seat. So, the policies and laws even which are enumerated in the State List and Concurrent List are at whims and fancies of the Lieutenant Governor for approval. This goes against the Supreme Court ruling in Government of NCT of Delhi vs Union of India. The following excerpt emphasis-

“A conjoint reading of clauses (3) (a) and (4) of Article 239AA, divulges that the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative Assembly and accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent list and all, but three excluded subjects, in the State List.”

Also, it is against the provision 239AA(1)(a) and embarrasses it’s scope which states that the Parliament can make provisions and supplementary provisions for all incidental or consequential matters.

Further, Article 239AB states that the Lieutenant Governor of Delhi can report matter to the President of India if the governance in the National Capital Territory of Delhi cannot be carried out properly. But under the Amended Act the Lieutenant Governor of Delhi has been designated as ‘Government’. So, there are less chances or no chances where matters of disturbance of governance will be reported.

Against Basic Principle: Federalism

In the 2018 judgement, the Supreme Court relied on the principles of democracy and federalism. These are two cardinal principles of basic structure of Constitution. The basic structure of doctrine was formulated in landmark judgement Keshavnanda Bharti vs Union of India. Here, the thirteen judge bench held that the Parliament cannot use it’s powers to make any changes in the basic structure of Constitution. The basic features of Constitution of India are-

  1. Supremacy of Constitution,
  2. Republican and Democratic form of Government,
  3.  Secularism in the Constitution,
  4.  Division of Power between the legislature, the executive and the judiciary,
  5. Federal nature of  Constitution

The new Amendment Act is in contravention to the most of the basic principles of the Constitution expect third feature. The Constitutional analysis indicates that the National Capital Territory of Delhi (Amendment)Act is not constitutionally neutral.

People’s Right to be Ruled by Elected Government taken away

Abraham Lincoln quoted, “That the government is by the people, for the people and from the people.” The New Amendment Act had not alter the basics of the quotation but is completely diverging from its principles. According, to the quote, the people in democratic set up have a natural right to choose those who can lead them and take decisions on their behalf. There is a belief that their opinions and ideologies would be reflected in the policies formulated by the Legislative Assembly of Delhi would not get consent of Lieutenant Governor of Delhi. Since, the Lieutenant Governor of Delhi is appointed by the Union Government and not elected by the people of Delhi. In the present scenario, the people of Delhi have lost the right in a democratic country to be ruled by the Leaders they chose as the Lieutenant Governor of Delhi is designated as ‘Government’ of Delhi.

Politics over the Amendment Act, 2021

The Union Government clear it’s stand arguing that the recent amendments in GNCTD Act, 1991 are an honest effort to address the ambiguities in the Act which will ignored earlier. They strongly believe that the New Amendment Act, 2021, will increase transparency in the governance of  Delhi. There would be a harmonious relationship between the executive and the legislature.  The National Capital Territory of Delhi (Amendment) Act, 20021 received a lot of backlash from the opposition and Aam Aadmi Party, the ruling party in Delhi. The opposition and Delhi Government see it as a tactical play by the Union Government to paralysis Delhi Government and grab power from Delhi Government.

CONCLUSION

To summarize the new National Capital Territory of Delhi (Amendment) Act, 2021 has not altered the provisions of the Constitution and the judgements of the Supreme Court directly. There is a clever use of (PUBL) judgement where the principles on which the judgement primarily relied have been ignored to give effect to the new Amendment Bill. It is less likely that the Union Government will reform the National Capital Territory of Delhi (Amendment) Act, 2021. The hope is that the Supreme Court may look how the Amendment Act, 2021, ignores principles of basic structure doctrine, runs into contradiction to the earlier Supreme Court judgements and democratic system being put down.


[1] Dr. J.N. Pandey Constitutional Law of India ( Central Law Agency, Allahabad 54 edn. 2017

The Constitution ( Sixty Ninth Amendment) Act 1991, available at http://delhiassembly.nic.in.(Visited on August 11,2021)

Amendments to GNCTD Act, 2021 Do Not Alter Constitutional and Legal- available at http://pib.gov.in (Visited on August 17,2021)

[2] GNCTD Amendment Bill, Ministry of  Home Affairs ( Legislative Department)

The Government of National Capital Territory of Delhi Amendment Bill, 2021 available at http://prsindia.org ( Visited on August 13,2021)

[3] The Wire Staff “ GNCTD Amendment Act Deprives Delhi People of Elected Government: 76 Ex Civil Servants” THE WIRE (Published on April 10, 2021)

Vineet Bhalla “ What is the Constitutionality of the Government of National Capital Territory of Delhi (Amendment) Act 2021?” THE LEAFLET (Published on April 24,2021)

Government of National Capital Territory of Delhi vs Union of India (2018)SCC 501

People’s Union for Civil Liberties vs Union of India (AIR 2003) SC 2363

Keshavnanda Bharti vs Union of India (AIR1973) SC 1461

Author: Soumya Jain, BVIMR, Bharti Vidyapeeth University

Editor: Kanishka VaishSenior Editor, LexLife India.

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