The GNCT Delhi Amendment Act 2021
Written on April 17th, 2021 by {"login"=>"jcbitshyd", "email"=>"journal@hyderabad.bits-pilani.ac.in", "display_name"=>"Journal Club, BPHC", "first_name"=>"", "last_name"=>""}The Lieutenant Governor and state government of the National capital of Delhi always had trouble with sharing of power. It's not unusual for countries to have a special administration system for their capital cities as in the case of Washington DC (The USA), Brasilia(Brazil), etc and so has been with Delhi. Earlier there was confusion as to whether it should be a state or union territory which was resolved in 1991 with the introduction of a Legislative Assembly having most of the powers of a state government and hence providing Delhi with partial statehood. Since then Delhi has had seven chief ministers all of whom had conflicts with their LG counterparts, though sometimes even belonging to the same parties. Now, the central government has introduced a new act to change the current existing framework which reduces the status of the elected government to less than a municipality, as from now on the word “Government of Delhi” would refer to the “Lieutenant Governor”.
For Delhi, unlike other union territories, keeping its governance in mind, a special act, the Delhi Administration Act, 1966 was specially enacted to provide it with limited representative government through metropolitan Council, comprising 56 elected members and five nominated members. In 1989, after the Balakrishnan report was released,with which the demand for statehood in Delhi arose but was deliberated, as the committee specified that Delhi, being the capital, the central government would always like to have a say in its matters even related to the state list and hence the legislative government (if made) would have trouble exercising executive powers. Later,
with the Constitution 69th Amendment Act, 1991, the recommendations of the Committee were given effect, and Article 239AA and Article 239AB were inserted in part VIII of the Constitution which contains general provisions relating to the administration of Union territories. With this, Delhi was constitutionally given the title of “National Capital Territory of Delhi” which would be administered by a Lieutenant Governor (LG), who was to be appointed by the President. The article 239AA provided for a Legislative Assembly to be formed and a Council of Ministers to aid and advise the LG were also to be present and only in certain cases concerning subjects of land, police, and public order, the LG was not bound by the aid and advice of the Council of Ministers. Article 239AA(4) provided a mechanism for referring the matter to the President in case of a difference of opinion between the LG and the Council of Ministers. The GNCTD Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital. Despite a provided framework, conflicts prevailed between the State Government of Delhi and the Lieutenant Governor as both complained about the other crossing their designated field of power.
Following which,on 4th July 2018, the Supreme Court ruled that according to article 239AA of the Indian constitution, although the Government had to keep the LG informed of its decisions, Delhi's Lieutenant governor had no independent decision-making powers and had to follow the aid and advice of the chief-minister-led council of ministers of the Government of Delhi on matters the Delhi legislative assembly could legislate on. This ruling was in response to the civil appeal made on the 2016 verdict of the Delhi High Court that ruled that the Lieutenant Governor of Delhi exercised "complete control of all matters regarding National Capital Territory (NCT) of Delhi”.
This entire conflict between the lieutenant governor of NCT and the State Government of Delhi started due to the coexistence of Article 239 and 239AA. According to the Lieutenant Governor, New Delhi being a Union Territory under Article 239 allows it to act independently of his council members. However, the State Government of Delhi held that Article 239AA of the Constitution grants special status to Delhi having its own legislatively elected government. The 2018 judgement declared that the administration of union territory under article 239 is different from article 239AA which provides for an elected legislature. The court held that Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the state government headed by the Chief Minister. Hence, through the judgement, the Supreme Court has settled the law regarding the ‘aid and advice' of the Council of Ministers by affirming that the LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’. Article 239AA (4) says that in the case of a difference of opinion between the LG and his Ministers on any matter, the LG shall refer it to the President for final decision and act according to it. However, the court inferred that the words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter'. However, the court did not very clearly delineate the issues in respect of which the LG can refer to a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the LG and the State government leaving open ends in the judgement.
Now, the central government has brought a bill to amend the GNCT of Delhi Act 1991. The current amendment redefines the term Delhi Government as the Lieutenant Governor of Delhi rather than the elected Legislative Assembly of Delhi, it takes away the assembly’s power to form any committees to (i) consider the matters of the day-to-day administration of the NCT of Delhi and (ii) conduct an inquiry in relation to administrative decisions.
The act further provides that the rules made by the assembly to regulate the procedure and conduct of business must be consistent with the rules of procedure and conduct of business in the Lok Sabha.
The amendment requires the elected government to obtain the opinion of LG on their decisions before taking any executive action on matters as specified by the LG himself, providing LG with the power to reconsider any decision of the government. Moreover, there is no specified timeframe in which LG has to provide its opinion to the elected government and hence it can hold on to decisions for as long as it wishes to.
The current Act seeks to introduce a complete change in the way the National Capital Territory (NCT) of Delhi is administered. The Act introduced in parliament conceals more than it reveals since it contains no substantive reference to the purpose of the Act. The Central Government introduced the bill to give effect to the interpretation of SC’s judgement and to clear the confusions about the current system, but the bill in fact goes on to negate every major interpretation made by the constitutional bench of SC.
Many leaders from the opposition party have demanded that the Act be withdrawn and Delhi’s government power be restored. The Opposition claims that this was a method to snatch away the democratic rights of elected governments of states and union territories. Expressing his displeasure over it, Arvind Kejriwal said, “The passage of the GNCTD Amendment Bill in Lok Sabha is an insult to the people of Delhi. The Bill effectively takes away powers from those who were voted by people and gives powers to run Delhi to those who were defeated. BJP has cheated the people." Congress leaders too have said that the Act is an insult to the people of Delhi.
On the contrary, Delhi BJP president Adesh Gupta welcomed the passing of the Bill and said that it will help improve the administrative system in Delhi. “During the last few years, the Kejriwal government, by bringing unconstitutional bills in Delhi assembly, has hurt the image of the national capital. Now, all Bills will be vetted before being tabled in the assembly,” Gupta said.
The very proposal of referring to a single person as the government stands against the principle of constitutional democracy, further making council of ministers responsible to the LG makes their existence worthless, as them being responsible to the legislative assembly was the very reason supreme court had granted them the status of the government and had provided them with the power to take an executive decision on the matters pertaining to the subjects mentioned in the state and concurrent lists to them. Making everyone responsible to the LG provides him with exploitable power and the central government a clear backdoor entry into every matter concerning the state.
The fact that this is done stating that Delhi is a union territory makes the purpose of the 1991 amendment void which states that Delhi being the capital of the country deserves some special treatment. But such a bill can never be accepted by any elected government and no doubt it has faced criticism from the Aam Aadmi Party Government and the opposition.
Even experts believe that the bill is a direct violation of fundamental principles of the constitution. Abhishek Manu Singhvi member of the Parliament in the Rajya Sabha mentioned that despite the word “federalism” not present in the constitution as such, it is a fundamental principle around which the constitution is framed. He also stated that the changes the ruling party wish to introduce require a constitutional amendment and cannot be made by a mere act. The bill if passed, will not be able to stand judicial scrutiny.
Finally, it seems that the central government has messed up the existing cease-fire between the LG and the Delhi government as they failed to serve the very concept of federal cooperation by putting one party completely under the other in an attempt to seize dominance.