Delhi Chief Minister Arvind Kejriwal’s strenuous struggle which had led to the July 2018 NCT verdict by a five-judge Constitution Bench of Supreme Court that settled the power arithmetic in favour of the elected Government of Delhi has been sabotaged by the passage of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 in Rajya Sabha on March 24. The critics of the Bill including the opposition parties find it unconstitutional as it tries to subvert the federal character of the Indian Union assigned by the Constitution. However, the Central Government’s version on this issue is that there is nothing unconstitutional as the new amendment only intends to properly implement the Supreme Court’s 2018 Constitution Bench judgment and additionally seeks to clarify the ambiguities which exist in Article 239AA, which was introduced by way of the 69th Constitution Amendment in 1991 to give Delhi a legislature, the GNCTD Act 1991 and the Transaction of Business Rules (TBR), 1993 that govern the complex power structure of Delhi.
In the national capital, the jurisdictions over different subjects are separately exercised by the Central and Delhi Governments with respect to the provisions contained in Article 239AA, the GNCTD Act 1991 and TBR 1993. The Supreme Court had, in its Government of NCT of Delhi versus Union of India verdict of 2018, clarified that the Lieutenant Governor (LG) is bound to act on the ‘aid and advice’ of the NCT of Delhi’s Council of Ministers concerning matters falling within the State legislature’s ambit, of course except subjects involving land, public order and police, those coming under central jurisdiction.
Then why was this GNCTD Amendment Bill, 2021 introduced and why has it ignited a furore? To know this, we need to understand the major changes it has brought for NCT of Delhi, the elected Government of NCT of Delhi and the LG and the new set of constitutional challenges it shall create, like:
Under the new law, the expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall henceforth mean the ‘Lieutenant Governor’. Now the LG who is nothing more than an administrator nominated by the Centre instead of the elected representatives shall mean the Government of NCT of Delhi. And it shall indeed be a constitutional challenge and very ugly to watch the LG recommending to the President to implement the President’s Rule in Delhi, in the event of a situation of political instability or any other condition demanding such an action as the LG constitutes the Government and not the elected representatives.
The new law seeks that conduct of business in the Delhi Assembly to be consistent with Rules of Procedure and Conduct of Business in the Lok Sabha. By this Delhi Assembly is now sort of forced to adopt the same business rules as that of Lok Sabha.
Although it is true that the conduct of business rules of many Assemblies is similar, but under the constitutional scheme every assembly is unique and such a provision is beyond the expectations of the constitution as even the conduct rules of the Rajya Sabha and the Lok Sabha are different even though they belong to the same constitutional entity, that is the Parliament.The new law makes it mandatory for the Delhi Assembly to not to make any rule so as to enable itself or its committees to consider the matters of the day-to-day administration of the Capital or conduct inquiries about the administrative decisions; and any of the rule made in contravention of this proviso, before the commencement of the GNCTD (Amendment) Act, 2021, shall be void.
The Centre’s argument for introducing this provision is because the Delhi Assembly doesn’t have jurisdiction over subjects like public order, police, land and services; and, therefore, it cannot be allowed to constitute in-house committees to examine such issues.
However, what the Centre couldn’t properly clarify is that, when the jurisdiction of the Delhi Assembly had been clearly demarcated by the Supreme Court in its 2018 verdict, there was no such necessity to introduce such provision. And additionally, the retrospective clause, owing to which the Delhi Assembly cannot even constitute its oversight committees for Delhi’s administration and that all existing committees shall become void once the Amendment comes into effect and makes the Assembly of elected representatives purposeless and defeats the very idea of democracy.
The executive action sought to be taken in pursuance to the decision of the Council of Ministers or a Minister or to exercise powers of Government, the opinion of the LG shall be obtained by a general or special order by the LG. This provision is in complete violation of the Supreme Court verdict which has clearly ruled out the concurrence of the LG.
To put it straight, the amendment doesn’t use the term ‘concurrence’ but it insists on ‘opinion’ of LG to be taken prior to implementation of executive action, so the point is when the Article 239AA, the first GNCTD Act and TBR 1993 already have the necessary provisions dictating the Delhi Government to seek the opinion of LG, the new amendment obviously intends to bypass the SC verdict and enforce the ‘concurrence principle’ in a new form, which will be anti-development and make the administration go sluggish even in cases of emergency.
The amendment further paves way for the LG to refer to the President any Bill passed by the Delhi legislature that may even incidentally fall outside the purview of the Delhi legislature.
Actually, this issue has been well-settled by the SC that the power of legislative assemblies to pass law shall also mean to include the powers to incidentally step outside of the scope of those subjects, to the extent the subject matter of the law relates to one of the subjects within the State or Concurrent lists in the Constitution.
The new amendment is actually lacking constitutional prudence and shall further destabilise the settled constitutional position about the powers of the elected government of Delhi and the LG as it clearly goes against the following observations of the SC in its 2018 judgment; “The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.
As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government concerning matters which exclusively fall within their domain.” “The status of NCT of Delhi is sui generis (unique) and the status of the L-G is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.”
(The writer is a lawyer and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com)
