The Government Of National Capital Territory Of Delhi (Amendment) Act 2021

Delhi lost its statehood in the year 1956 and became a Union Territory. During this time, the Union Territory of Delhi was administrated by the Delhi Administration Act 1966 and the Delhi Government consisted of Metropolitan Council, comprising of 56 elected members and five nominated members, and a Governor, which was the head of Union Territory of Delhi. In 1991, after the 69^th Constitutional Amendment, Union Territory of Delhi acquired a special status of National Capital Territory of Delhi. The amendment added Article 239AA and 239 AB to the Constitution of India which created a provision to form a Constitutional Head, an Elected Head and a Legislative body. Later that same year, a Lieutenant Governor, a Chief Minister and Legislative Assembly started their tenure as administrators of Delhi after the enactment of the GNCTD Act.

The Government of National Capital Territory of Delhi Act 1991

The GNCTD Act defined the powers and functions of the Lieutenant Governor, Chief Minister and Council of Minister and their day to day administrative functions. Though the said Act aimed to create a balanced federal structure for the capital city, Article 239 and 239 AA of the Constitution created a jurisdictional conflict between Lieutenant Governor and Chief Minister of the NCT of Delhi. As per the said Act, every bill passed by the Legislative Assembly has to be corresponded with the Lieutenant Governor for his approval. This often led to clashing of interests between the constitutional head and executive head of the NCT. Though there have been conflicts between the State Government and the Central Government, in the past, when both were led by different political parties, the friction between the two increased when Narendra Modi led Bhartiya Janta Party ("BJP") got the hold of Centre and appointed Najeeb Jung as the Lieutenant Governor and Arvind Kejriwal led Aam Aadmi Party ("AAP") established themselves as the elected Government of Delhi. Important bills, such as the Jan Lokpal Bill, were withheld by the Lieutenant Governor after it was passed by the Delhi Cabinet. In addition to this, several administrative decisions were hampered by the then Lieutenant Governor some of which include annulment of all the bureaucratic postings and vetoing several cabinet orders. This effect on the day-to-day administrative decisions of the Delhi Government raised questions on the ill functioning federal structure of the NCT of Delhi. In 2015, Arvind Kejriwal approached Delhi High Court for the unconstitutional interference of the Lieutenant Governor and argued that there cannot be two reporting authorities. The High Court dismissed the argument and upheld that the Lieutenant Governor is the Constitutional Head of the capital city and he is not bound by the advice of the Council of Ministers.

With an aim to subside the conflict between the powers of the Lieutenant Governor and the Chief Minister, Arvind Kejriwal further approached the Supreme Court of India which overruled the order of the Delhi High Court. The Constitutional Bench of the Apex Court in GNCT of Delhi v UOI & Ors, observed that federalism is the essence of GNCTD Act and the real power must vest with the elected government. In order to protect the federal spirit of the constitution, the Supreme Court held that the concurrence of Lieutenant Governor on every matter is not essential except in matters related to Police, Public Order and Land. The bench further added that decisions of the Council of Minister will have to be communicated to the Lieutenant Governor and the Lieutenant Governor must function on the aid and advice of the Council of Ministers. However, the Delhi Government must not forget that Delhi is not a state and should work in close association with the Lieutenant Governor. This decision was made in the light of democratic rights of the people as the approval of the Lieutenant Governor on every matter was defeating the purpose of an elected government.

The Government of National Capital Territory of Delhi (Amendment) Act 2021

The Central Government in the Statement of Reasons and Objects of the Bill claimed that the Amendment Act has been enacted in conformity with the 2018 Supreme Court judgment and it further defines the functions of Lieutenant Governor and Chief Minister. This has been done by making the following changes:

1. The Amendment Act alters Section 21, 24, 33 and 44 which deals with Restrictions on laws passed by Legislative Assembly with respect to certain matters, Assent to Bills, Rules of procedure and Conduct of business respectively of the GNCTD Act
2. Section 2 of the Amendment Acts which amends Section 21 states that 'Government' in all the laws by the Legislative Assembly will mean the Lieutenant Governor. Earlier the term was used for the Chief Minister and its Council of Ministers.
3. Section 3 of the Amendment Act which amends Section 24, related to the Assent to Bills, states that all the bills passed outside the purview of power vested in Legislative Council will be reserved for the President.
4. Section 4 of the Amendment Act amends Section 33 which transfers all day to day administrative power to Lieutenant Governor which was earlier vested in the Chief Minister.
5. Section 5 the Amendment Act amends Section 44 which makes it mandatory to seek advice of the Lieutenant Governor in all executive decisions of the Council of Ministers.

The Amendment Act does not mention the timeline to be followed by Lieutenant Governor for passing the bill or taking any administrative actions. With the above amendments, major portion of the power of the Chief Minister of Delhi has been transferred to the Lieutenant Governor. This results in the stronger hold of the Central Government in administrative matters of the NCT than the elected Government of Delhi.

Reasons for Concern

The Amendment Act has received barrage of criticism for its undemocratic approach which, as the critics claim, is harming the federal system of India. Federalism is part of the basic structure of the Constitution of India, it provides for dual government at both central and state level. In a democratic state, the people have the right to choose their government on both levels. Transferring the powers of the elected head to an appointed head defeats the purpose of the election of a separate government for Delhi and shifts the power of administration to the Central Government which goes against the essence of GNCTD Act, the verdict of the Supreme Court and the Constitution of India.

In March, when the GNCTD Bill was introduced in the parliament, AAP Government criticized the Centre for introducing such an amendment calling it as unconstitutional. The Ministry of Home Affair released statement clarifying that the Amendment Act does not modify any constitutional or legal rights of the elected Government and the administrative changes will help in better governance of the NCT.

Pointing out that the amendment is retrogressive and recessive, seventy-six former civil servants have also written to the Supreme Court urging to scrutinize the Act and declare it unconstitutional

The National Capital Territory of Delhi has an unprecedented administrative set up now. Not being a State does not mean that the people of NCT will be divested from their democratic right of choosing their own government. This amendment can be seen as a way to control the NCT indirectly by the union government which they could not do with Delhi electorate. It is also an interesting fact that the BJP, which controls the central government was once an advocate of full statehood of Delhi.

Views are Personal

The Author is an Advocate at the Supreme Court of India.