Practical Difficulties In Administration Of Delhi Necessitated GNCTD Amendment Act 2021 : Centre Tells Supreme Court

Responding to Delhi Government's challenge to constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Act 2021, the Union of India has submitted before the Supreme Court that the Parliament of India considered it expedient to enact amending act due to several instances of "practical difficulties and disruptions" over the last few years in the functioning of the NCT of Delhi owing to the Lieutenant Governor being kept in the dark regarding the decisions

The Union of India has filed its counter affidavit in Delhi Government's writ petition which has sought directions to quash Sections 21, 24, 33, 44 of the Government of National Capital Territory of Delhi Act, 1991 as amended by the 2021 amendment Act. 

The amendment Act increases the powers of the LG by declaring him to be the "Government of Delhi". 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 of the Delhi Government. 

There is No vested right to continuity of law made by Parliament: Centre

The Union of India has submitted that Delhi Government's arguments in support of its contention that the amending Act of 2021 is contrary to the spirit of the 1991 Act are predicated upon an expectation that law which is favourable shall continue and law cannot be changed.

The Centre has argued that there is no vested right to continuity of law made by Parliament, and the fact that certain provisions of law held the field since 1991 and have been followed for years to come under the unamended Act by itself cannot be the basis to challenge the validity of the amended provisions of the Amendment Act of 2021.

Relying on the recent judgment in the case Noel Harper v. Union of India(which upheld FCRA amendments), the Centre has submitted that it is open for the Parliament to make modifications in the law on the basis of the experience gained during the implementation of the unamended provisions at the relevant time.

No Cause Of Action Has Arisen In Favour Of Delhi Govt Granting It Right to File Writ Petition, Mere Prospect Not Sufficient To Strike Down Law: Centre

According to the Union of India, the present challenge by the Delhi Government is not sustainable as no cause of action has arisen in favour of the Petitioner granting it a right to file the present writ petition challenging the vires of the Amending Act of 2021.

It has been submitted that first principles of the law relating to writs and constitutional validity require that the petitioner calling in to question the validity of a legislative action must exhibit a personal infraction of its rights by the legislation.

It has been argued that a cause of action will arise only when the provisions of the Act which were implemented, give rise to civil or evil consequences to the Petitioner. Therefore, it is well settled law that a adjudication of a vires challenge or even a constitutional question cannot be academic or in a vacuum as mere prospect of misuse is not sufficient to strike down the law.

While calling the petition per se not maintainable, the Centre has submitted that even on merits a large part of the arguments advanced by the petitioner relates to a statement of objects and reasons passed by the Parliament in 1991.

According to the Centre, while such statement of objects was relevant to understand the intent of the Parliament in the year 1991 and cannot possibly be extended to be of relevance or significance to understand the present scenario in 2021.

Legislation Can Only Be Tested On Anvil Of Constitution & Not Any Other Legislation: Centre

The Union of India has submitted that the petitioner Delhi Government has attempted to deem the provisions of the 2021 Act as contrary to the 1991 Act, which has no basis in law, owing to the fact that a legislation can only be tested on the anvil of the constitution and not any other legislation.

According to the Union, this technical deficiency strikes at the very root of the basis of challenge by the petitioner and must be kept in mind while adjudicating the maintainability of the present writ petition.

Why Parliament of India considered it expedient to enact the GNCTD Amending Act of 2021: Centre

According to the Centre, despite a constitutional bench comprehensively evaluating a scheme of governance for the NCT of Delhi, the administration continued to suffer on a daily basis due to lack of clarity in relation to the executive authority.

Furthermore, the 2018 judgment highlighted certain shortcomings in the legislative scheme of Delhi for enabling Co-operative Governance, as highlighted in the 2018 judgment.

Instances Of Practical Difficulties & disruptions & Lt Governor Being Kept In Dark About Decisions:

The affidavit has stated that over the last few years, there were several instances of practical difficulties and disruptions in the functioning of the NCT of Delhi owing to the fact that the Lieutenant Governor is often kept in the dark regarding the decisions pertaining to the NCT of Delhi.

This was done despite the fact that even under the unamended GNCTD Act and Transaction of Business Rules, the Government of NCT of Delhi was required to inform the Lieutenant Governor regarding administration of NCT of Delhi.

Appointments Made To Delhi Jal Board and DCPCR Without Submitting Proposal To Lt Governor: Centre

Citing instances for disruptions in functioning of NCTD, it has been submitted that Government of NCT of Delhi through its notification dated 11.06.2020 had appointed a Delhi MLA as Member of the Delhi Water Board, without the submitting the proposal relating to his appointment to the Lieutenant Governor, thereby obstructing the Lieutenant Governor in exercising his duty under proviso to Article 239AA(4).

Further, Chairperson of Delhi Commission for Protection of Child Rights was appointed through notification dated 03.07.2020, even when the Lieutenant Governor called for the file by exercising his powers the Transaction of Business Rules.

Infirmities in Existing Act:

The Union has pointed out several infirmities in the existing Act, like lack of structural mechanism for effective and time bound implementation of Section 44 and the lack of clarity regarding the proposals that need to be submitted to the Lieutenant Governor before issuing any orders in relation to such proposals.

Goal of Impugned Amendment To Foster Harmonious Relations Between Legislature & Executive & Clarify & streamline the governance structure of the NCT of Delhi: Centre

Referring to the Statement of Objects and Reasons of the amendment act, the Centre has submitted that the goal of the impugned amendments is to foster harmonious relations between legislature and executive and bring clarity by defining the responsibilities of the elected Government on one hand and the Lieutenant Governor on the other hand, which shall be in consonance with the governance scheme as envisaged under the Constitution and as interpreted by the Constitution Bench.

Amendment Act Introduced To Give Effect To Constitution Bench's Judgment & Interpretation Of Article 239AA: Centre

The provisions of the Amendment Act of 2021 are in tune with and have been introduced to give effect to the decision of the Constitution Bench in State NCT of Delhi) v. Union of India, (2018), and to give effect to the interpretation of the provision of Article 239AA of the Constitution of India relating to the structure of governance in National Capital Territory of Delhi.

According to the Centre,the Amendment Act in no manner attempts to override the substratum of the Constitution Bench's decision or Article 239AA, and merely seeks to bring clarity to and streamline the structure of governance in tune with the principles enshrined by the Constitution Bench, which are, co-extensive power of the executive and legislature, power granted to the elected government of NCT of Delhi as well as federal structure of the Indian Constitution.

Amendment Act is Not Vague & Not Liable To Be Read Down On This Ground:

The Centre has opposed the Delhi Government's contention that certain expressions inserted by way of the Amendment Act of 2021 are vague making it difficult to define or limits its scope.

According to the Centre, the Amendment Act of 2021 is not vague and is thus, not liable to be read down or declared unconstitutional on this ground

Amendment Act of 2021 has made no substantive amendments: 

The Union of India has submitted that the purpose of the Amendment Act of 2021, is to allay any confusion that has arisen in the implementation of legislative provisions in the national capital.

Therefore, the act has made no substantive amendments which may have effect of directly or indirectly attempting to override the constitutional provision of Article 239AA(4) of the Constitution which provide that the Council of Minister with the Chief Minister as their head shall aid and advise the Lieutenant Governor or the interpretation of the said constitutional provision done by the Constitution Bench in relation to matter where the Legislative Assembly of Delhi has competence.

Challenge to amended Section 24: What amendment seeks to Insert, Has Always Been Lt Governor's Prerogative

The Centre has submitted that the amended provision provides that the Lieutenant Governor, before an Act is passed and a bill is presented before the Lieutenant Governor for his assent, the Governor, shall exercise his power to withhold his assent and reserve the bill for consideration of the President if the bill incidentally encroaches upon the subject which falls outside the purview of legislative assembly of Delhi.

Therefore it has been submitted that what the amendment to Section 24 seeks to insert at the stage of legislative proposal, has always been the prerogative of the Lieutenant Governor. Further, the Lieutenant Governor has not been vested with power of a pocket veto by virtue of the said amendment.

Referring to the amendment to section 24, the Union has submitted that the Amendment Act of 2021 seeks to streamline the governance of NCT of Delhi and cut-down the conflict by extending the likes of power which was already vested to legislative proposals in order to deal with the controversy at its root rather than at the later stage requiring reconsideration of the proposals, agendas, decisions or the orders already passed.

Case Title: Govt of NCT of Delhi vs Union of India, WP(C) 887/2021