The Lok Sabha has passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 to enhance the powers of Lieutenant Governor of Delhi. The Bill amends the GNCT of Delhi Act, 1991, a legislation that provides framework for functioning of the Delhi Legislative Assembly and re-defines Delhi Government as the Lieutenant Governor (LG). It also provides that the...
The Lok Sabha has passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 to enhance the powers of Lieutenant Governor of Delhi.
The Bill amends the GNCT of Delhi Act, 1991, a legislation that provides framework for functioning of the Delhi Legislative Assembly and re-defines Delhi Government as the Lieutenant Governor (LG).
It also provides that the opinion of the LG "shall be obtained" on all such matters as may be specified by the LG, before taking any executive action on decisions of the Council of Ministers.
The Bill has been perceived as an attempt to circumvent the interpretation made by the Supreme Court in the Delhi v. LG case, holding that the LG is an administrative head in the "limited sense" and that he is "bound by the aid and advise" of the Council of Ministers of Delhi Government, except in matters of land, police and public order.
Many members apprehend that the Bill will subvert the elected Government of Delhi from functioning autonomously and will affect cooperative federalism.
Salient features of the Bill:
The Bill curbs the Delhi Assembly's power to conduct its proceedings as per the rules of procedure made by it. It provides that the Rules made by the Delhi Legislative Assembly to regulate the procedure and conduct of business in the Assembly must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.
The Bill also prohibits the Legislative Assembly from making any rule to enable itself or its Committees to: (i) consider the matters of day-to-day administration of the NCT of Delhi and (ii) conduct any inquiry in relation to administrative decisions. Further, any provision in force having the above said effect will be void.
This means that the Executive will not be accountable to the Legislature in Delhi.
Further, the Bill provides that the opinion of the LG must be obtained before taking any executive action on decisions of Delhi Government, on such matters as may be specified by the LG.
Comparing Bill with Supreme Court judgment
This last leg of the Bill, requiring the Government to mandatorily seek the Lieutenant Governor's on the matters so specified by him may be contrasted with the observations made by the Supreme Court in GNCT of Delhi v. Union of India & Anr. (commonly known as Delhi v. LG case).
Delineating the boundaries of power between the Lieutenant-Governor and Delhi Government in the said judgment, the Supreme Court had held that the LG cannot interfere in each and every decision of the Delhi Government, and that the LG is bound by the aid and advise of the council of ministers of Delhi Government, except in matters of land, police and public order.
The Constitution Bench comprising Chief Justice Dipak Misra, Justice A.K. Sikri, Justice A.M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan had ruled that "LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advise of NCT Government in areas other than those exempted",
The Top Court observed that the elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently.
It was held that the Parliamentary form of government is based on principle of "collective responsibility" of the cabinet.
"If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated," the Supreme Court had held.
The Constitution bench added that the real purpose behind the Constitution (Sixtyninth Amendment) Act, 1991, which inserted Section 239AA (Special provisions with respect to Delhi) and paved way for setting up an elected Government in the Union Territory was "to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinion in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution."
It was held that to realize this real purpose, it is necessary to give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of the Constitution are reinforced in NCT of Delhi in their truest sense.
"The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi," the order stated.
Parliamentary Debate
In this backdrop, many members opposed the Bill. "The present legislation is unconstitutional and coloured. It seeks to remove the limits imposed by the Constitutional Bench on the powers of the LG," Congress MP Manish Tewari said.
He emphasized that the 69th Constitutional Amendment grants a special status to Delhi for having an elected Government. "LG cannot be given overriding powers by making him the Government. Except police, public order and land, Government had all the powers to make laws under article 239 A (a) of the Constitution," he said.
He added that the provision in the Bill which requires that opinion of the LG must be obtained before taking any executive action on decisions of Delhi Govt "divorces a decision from its implementation".
Dr. ST Hasan of the Samajwadi Party added that the provision for seeking LG's opinion is contrary to the Supreme Court's judgment as per which the Government has to only "inform" the LG of its decision.
"The Supreme Court said the Delhi government empowered to take decision on all subjects except public order, police and land. It also said the LG being the Administrative head shall be kept informed with respect to all the decisions taken by the Council of Ministers. Informing the LG doesn't mean taking permission. We are overturning the 5-judge bench," he said.
Union Minister G. Kishan Reddy however claimed that that the Bill neither takes away any right from the Delhi Government nor it confers any new rights on the LG. He said that the proposed amendments are to clarify the points raised after directions from the Supreme Court.
"The Honorable Court said it is incumbent on Delhi Government to inform the Lieutenant Governor of its decisions. Some clarification is needed as it is affecting the citizens. It is necessary to remove the administrative uncertainties…It will improve administrative functioning," he said.
During the debate, BJP MP Meenakshi Lekhi claimed that under Article 239AA (Special provisions for Delhi), the LG is an Administrator and his position is different from that of other Governors. "Governor works on aid and advice of the Council of Ministers under Article 163 of the Constitution. But the LG is 'assisted' by the Council of Ministers under Article 239AA(4)," she said.
She emphasized that sub-section (4) under Article 239AA states that the Council of Ministers in the Legislative Assembly, shall aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor (in urgent matters), to take such action as he deems necessary.
Lekhi said,
"The Council of Ministers can aid & advice the administrator, which is the LG. however, the LG is not bound by such advice. He is free to have a different opinion. In case of such difference in opinion, the LG alone has power to refer the matter to the President. Meanwhile, if he deems fit given the nature and urgency of the matter, he is empowered to take decisions. Attention must be paid to Article 239AA(4)."
She added,
"LG is not just an executive head but also the Administrator. Since India is a quasi-federal, the Centre has primacy on some issues. Even the Balakrishnan Committee report recognizes that Delhi being the national capital cannot have the character of a full-fledged State. hence, the Delhi Government has restricted powers."
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