What is NCT of Delhi (amendment) bill issue?

Ramyata Dass- Researcher, Law Insider

The central government has introduced on March 15, 2021, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021^[1] in the Lok Sabha to amend the Government of National Capital Territory of Delhi Act, 1991 (hereafter referred as ‘the principal act’). This bill has stirred a strong reaction from media houses and experts. It is seen that the bill further defines the responsibilities of the elected government and lieutenant governor in Delhi.

The main reason this bill has attracted controversy is because the bill is seen as a dilution of the 2018 judgment of the Supreme Court in the case of Government of NCT of Delhi v. Union of India^[2]. This article aims to highlight the key points enumerated in the bill and the judgment of Supreme Court. Amendments have been made to section 21, 24. 33 and 44. The proposed bill has also given the statement of objects and reasons.

POINTS FROM THE PROPOSED BILL IN LOK SABHA

• In section 21 of the principal act, after subsection (2), the following sub-section is proposed to be inserted namely-

‘(3) The expression “Government” referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.’

• This provision relates to the administrative decisions by the legislative assembly

In section 33 of the principal act, in sub-section (1) –

(b) In the proviso, for the words “Provided that”, the following shall be substituted, namely:—

“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.

1. The discretionary power of the Lieutenant Governor has been widened. The bill seeks to give powers to LG even in matters where the Legislative Assembly of Delhi is empowered to make laws.
2. In the statement of objects and reasons of the bill it is stated that “It seeks to ensure that the Lieutenant Governor is necessarily granted an opportunity to exercise the power entrusted to him under proviso to clause (4) of article 239AA^[3] of the Constitution, in select category of cases and also to make rules in matters which incidentally encroach upon matters falling outside the preview of the Legislative Assembly.

This ensures that the LG is necessarily granted an opportunity to give his opinion before the decision undertaken by the council of ministers.

1. There has been an amendment to section 44. In section 44 of the principal Act, in sub-section (2), the following proviso shall be inserted, namely:—

“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 of the Constitution shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.”

NEED FOR AMENDMENT

As stated in the statement of objects and reasons section 44 of the Act deals with conduct of business and there is no structural mechanism provided in the Act for effective time bound implementation of said section. Further, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing order thereon.

SPECIAL STATUS OF DELHI – GOVERNMENT OF NCT OF DELHI V. UNION OF INDIA^[4]

The coram constituted of C.J. Dipak Misra, J. A.K. Sikri, J. A.M. Khanwilkar, J. D.Y. Chandrachud & J. Ashok Bhushan. The 2018 judgment runs through 536 pages whereby the Supreme Court noted 3 main constitutional issues which involved:

1. Status of Delhi under the constitution
2. Lt. Governor to act on ‘aid and advice’ of the Council of Ministers
3. Lt. Governor cannot refer ‘every’ matter to the President

STATUS OF DELHI UNDER THE CONSTITUTION

It was held that Delhi is not a state. The court cited the case of National Delhi Municipal Committee v State of Punjab (1994) 6 SCC 619 and held that it was still binding. The Chief justice held that Delhi is not a state as it enjoys a sui generis special status. It was held that the lieutenant Governor is at best an administrator in a limited sense.

The judges took a different approach in stating that Delhi was not a state but a union territory except for Justice Chandrachud. Justice Bhushan invoked Article 239(1) and stated Delhi is a Union territory. Whereas Justice D.Y. Chandrachud stated that the administration of union territory under Article 239(1) is different from Article 239 AA which categorically provides for an elected legislature and thereby Delhi is not a Union Territory.

LT. GOVERNOR TO ACT ON ‘AID AND ADVICE’ OF THE COUNCIL OF MINISTERS

It was held that there the executive power of Delhi government is coextensive with the legislative powers of the Delhi Assembly. Deducting from this, it was stated that LG is bound by ‘aid and advice’ of the council of ministers in matters where the delhi assembly has the power to make laws. Justice Dipak Misra was seen to cite the principles of ‘Collective Responsibility’ and ‘Co-Operative Federalism’. It was held by Justice Bhushan held that in the case of Delhi the LG is bound by the aid and advice of the Council of Ministers.

LT. GOVERNOR CANNOT REFER ‘EVERY’ MATTER TO THE PRESIDENT

The court observed that even though the proviso to Article 239AA(4) allows the LG to reserve “any matter” for consideration of the President where the LG has a difference of opinion with the Council of Ministers, the term “any matter” could not mean every matter. It was held that such power can be exercised only in exceptional circumstances where there is a genuine difference of opinion with the council of ministers. Justice Chandrachud also added that this should be done by the LG when the matters pertain to “vital national interest”. Furthermore it should be exercised as a last resort after due consultations with the concerned minister.

It was also held that the LG’s concurrence is not required on issues other than police, public order and land. The Court has observed that in a democracy, real power must vest in the elected representatives and Lt. Governor cannot interfere in every decision of the Delhi Government.

THE MATTER OF SEPERATION OF POWERS REFERRED IN THE JUDGMENT

Time and again history has proved that accumulative power in hands of one person is dangerous and can lead to curtailing of powers of others. The doctrine of separation of power in a democracy has been inserted to prevent this abuse and accumulation of power in one hand which in-turn protects freedom for all.

In the 2018 Judgment the court is seen to make reference to the ideas of Montesquieu which stresses on the system of checks and balances and separation of powers. The constitutional form of government ensures power distribution among all the three organs of the state. The courts have recognized these principles of Montesquieu which are inherent in our constitutional scheme.

Democracy has been held, by a Constitution Bench of the Supreme Court in Kihoto Hollohan v Zachillhu 1992 SCR (1) 686, to be a part of the basic structure of our Constitution. The insertion of Article 239AA by the exercise of the constituent power is an instance of an amendment elevating a democratic form of governance to a constitutional status for the National Capital Territory.

Furthermore in I.R. Coelho v State of Tamil Nadu AIR 2007 SC 861 the court said that The Constitution is a living document and the constitutional provisions have to be construed having regard to the march of time and the development of law. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making.

1. http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/55_2021_LS_Eng.pdf ↑

2. https://main.sci.gov.in/supremecourt/2016/29357/29357_2016_Judgement_04-Jul-2018.pdf ↑

3. http://delhiassembly.nic.in/constitution.htm ↑

4. (2018) 8 SCC 501 ↑