Recently, the Central Government presented the Government of National Capital Territory of Delhi (Amendment) bill in the Lok Sabha. As expected, it has given rise to a huge controversy, primarily accusing the Government of snatching away the autonomy of the Delhi state government. However, the Government terms it as an instrument of making the statutory provisions on this matter more “clear”.
Table of Contents
An Introduction of the Bill and its objectives
The Central Government introduced the Government of National Capital Territory of Delhi (Amendment) bill in the upper legislature of the nation. The Bill adds some new meanings and descriptions to the Government of National Capital Territory of Delhi Act, 1991.
The bill is quite sensitive in nature because the scope of the powers of the Lieutenant Governor of Delhi has always been somewhat ambiguous. The power and responsibilities of governance in Delhi are divided between a democratically elected state government, and a centrally appointed Lieutenant Governor (The LG is appointed by the President of the country, but only on the recommendation of the Central Government).
The bill has been termed as an attempt to further clarify and redefine the scope of responsibilities of the Lieutenant Governor. Under the Statement of Objects and reasons section of the bill, it has been mentioned that the bill seeks to give effect to Supreme Court’s interpretation of article 239AA of the constitution, in its 2018 judgement.
It has been stated that the bill seeks nothing but to provide clarity on some “ambiguous” terms and that it will promote harmony between the stakeholders of governance in Delhi. The bill has attracted a lot of negative attention, and many scholars and politicians term it unconstitutional.
In order to fully understand the scope and context of the bill, it becomes necessary to analyze the objectives and relevance of the original Government of National Capital Territory of Delhi Act, 1991.
Importance of the Government of National Capital Territory of Delhi Act, 1991
This act was brought into existence so that it could support and enable those constitutional provisions which were related to the governance of the National Capital Territory of Delhi.
The Legislative assembly, matters of administration and governance in the National Capital Territory and the scope and meaning of the Lieutenant Governor’s powers were the major subjects that were dealt by this act. It served a supplementary and enabling purpose, as it dealt with a subject matter that was also perceived and discussed in the constitution under articles 239AA and 239B of the Constitution of India.
Section-wise analysis of the amendments made by the bill
The Bill amends some of the key sections of the original act, and this section presents an analysis of the same.
The amendment bill provides that under Section 21 of the principal act, which deals with restrictions placed on the laws passed by the legislative assembly, the term government should imply the lieutenant governor. This can be simply understood in the sense that the bill seeks to reduce ambiguity about the definition of the word government by clearly specifying that body who will actually have the power, in the context of the said section.
Section 24 of the principal act primarily dealt with the assent of the Lieutenant Governor. The main crux of the said section is that any bill passed by the Legislative Assembly of Delhi must be presented before the Lieutenant Governor and he might either assent to it, might withhold his assent, or might reserve it for the president’s consideration.The amendment in fact, increases the scope of the LG’s power to reserve for president’s consideration and not assent even those matters which may fall outside the purview and scope of the Legislative assembly’s powers.
The amendment to Section 33 of the principal act has been deemed somewhat problematic. It expressly prohibits the Legislative Assembly and its committees to make any rules or regulations regarding the administration and governance of day-to-day matters of administration in the National Capital Territory. Not only this, the amendment bill expressly declares any such rule and regulation that does not conform with the amended provisions to be void.
The amendment to this section actually has the effect of reducing the rule-making and implementing powers of the Delhi government, and is essentially of a prohibitory nature.
Finally, the present bill also amends Section 44 of the principal act. In the original act, Section 44 mainly stated that all executive decisions taken by the Lieutenant Governor, whether on his own or through advice of the council of ministers, shall be considered to be taken in the name of Lieutenant Governor only.
Through the amendment, obtaining the opinion of the Lieutenant Governor before exercising any sort of governmental power, extending to even administrators or chief commissioners, has been made mandatory.
Main Features of the Bill
Although the amendment may appear to make only certain verbal changes in the original act, but the impacts and implications of the same are important to analyze. The Bill certainly has the effect of widening the scope of the LG’s powers. It allows the LG to consider even those issues and decisions, on which the Legislative assembly of Delhi is fully empowered to legislate upon.
The compulsion to obtain the LG’s opinion in almost every kind of executive action and decision is another significant addition to the LG’s powers. It creates a situation where the LG has now got a right to have all sorts of actions and decisions mandatorily referred to them. Apart from these additions, the amendment also curbs the Delhi Legislative Assembly’s powers to make rules and regulations regarding day-to-day matters of administration.
The Central Governments stand on the Amendment
The Central Government has tried to defend the bill by stating that its introduction was necessary in order to “clarify” the original act. The bill has been termed as an effort to give a better interpretation to the 2018 Supreme Court Judgement. It has also been contended by the Ruling Central Government that the role of Lieutenant Governor is different from that of a Governor.
While the Governor works on the suggestions and recommendations of the council of ministers, the position of LG is not only that of a governor, but also of an administrator, and he is not bound by the advice of the council of ministers. It was stated by Minakshi Lekhi (an MP from the BJP) that under Art239AA (4) of the constitution, the LG is only assisted by the council of ministers and hence he is empowered to take decisions on issues that he considers necessary. She also relied on the Balakrishnan Committee report in order to assert that the Delhi State Government has limited powers, due to it not being a full-fledged state.
An analysis of the 2018 Supreme Court Judgement, and the Delhi State Government’s Stand
It has been apprehended by many that compulsorily taking the opinion of the Lieutenant Governor might not be in consonance with the 2018 Supreme Court Judgement on this matter. This judgement has clearly laid down the scope of the powers and responsibilities of the Lieutenant Governor. It has been stated that this position must not be used to interfere with the functioning of the Delhi State Government.
The judgement mentioned that the LG is bound by the aid and advice of the council of ministers, and he is limited to only an administrative capacity. The concept of “collective responsibility” was also mentioned by the court. It was clearly laid down that if the LG does not assent to a well thought out and deliberated policy of the state legislature, just for the sake of differing, that is going to violate this “collective responsibility” of the cabinet.
The SC quite comprehensively gave the message that the main purpose behind inserting article 239AA in the constitution, was to uphold the spirit of democracy and allowing the people of NCT to choose an elected government subject to constitutional regulations.
The opposition, especially the Aam Aadmi Party has vehemently opposed the bill. It has been contended that despite the Supreme Court’s clear interpretation of the issue, the Central government is trying to subvert the judicial authority on the matter. The opposition asserted that the amendment prohibits the State Legislature from forming rules and regulations regarding the administration of the NCT of Delhi, while under Article 239AA, state legislature has power to make laws on all issues except public order, police, and land.
Many opposition leaders are also alleging that this bill would lead to an unbalanced power distribution between the LG and the state government, and that would be detrimental to the democratic prospects of the governance of Delhi.
A constitutionally nuanced opinion
It is pertinent to analyze Senior Supreme Court Advocate Sanjay Hegde’s opinion on the present issue. According to him, the bill is an attempt by the Central Government to limit the powers of the Delhi State Government.
He is of the opinion, that although the Central Government cannot be prohibited from bringing such a bill under any constitutional provisions, yet it raises some fundamental questions of constitutional morality. These challenges would have to be resolved in the future, and at the same time, it is not quite right to deprive the population of the NCT of Delhi from their statehood.
The Author’s stance on the Issue
The Bill has been presented as an instrument of providing clarity to certain provisions of the principal act, by the Central Government. However, this contention does not seem to hold much water on a careful analysis of the sections of the amendment.
The amendment specifically proposes to prohibit the Legislative Assembly and its committees from making rules for the day-to-day administration of Delhi. In addition to this, it also declares any such rule or regulation, which is not in consonance with the amendment, as void. Provisions like these actually support the contention that the bill is an attempt to curb the powers of a democratically elected state government. Instead of having an enabling nature, the provisions seem to be prohibitive.
The Supreme Court itself has clearly laid down the role of Lieutenant Governor as an official who is bound by the aid and advice of the council of ministers. The bill, while asserting that its purpose is to “clarify” the powers and responsibilities of LG, instead appears to be an attempt of vesting more than necessary power in his/her hands.
Conclusion
The present bill must definitely be examined and analyzed so that its constitutionality can be insured. The bill raises a lot of political controversies, and also involves the interpretations of important constitutional provisions and judicial pronouncements.
The heavy criticism that the amendment draws is not unnecessary. The federal structure of the constitution, and the authority of the SC decision have been allegedly challenged by this amendment. The amendment not only provides additional powers to the LG, but it also prohibits the Delhi state legislature and its committees from making provisions related to Delhi’s governance.
Most probably, this amendment will be made subject to judicial scrutiny. The Supreme Court of India might again be faced with the responsibility of balancing this constitutionally sensitive situation. Focusing on the legal aspects of the amendment, certain points must be kept in mind. On the face of it, the amendment seems to add only certain new statements and words to the original act.
However, one needs to understand that the effect of such amendments can be significant and even detrimental to the constitutional fabric if not properly scrutinized. It must be insured that the powers conferred on authorities by the constitution are not misused to settle political rivalries. The democratic fabric of the country should be protected at all costs, and politics must not be allowed to interfere with the functioning of the Constitution.
This article is authored by Avikalp Mishra, Student at NLIU, Bhopal
