THE CONTEXT: Recently, the Centre has passed ‘The Government of National Capital Territory of Delhi (Amendment) Act, 2021’.The act has come into effect from 27th April 2021. The act is being criticized for being unconstitutional and against the 2018 judgement of the constitutional bench of the Supreme Court of India.
EVOLUTION
- Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991. Though technically a Union Territory, Delhi was treated as a special case, being the capital of the country, and given a special constitutional status by Parliament in the exercise of its constituent power as against its normal legislative power.
- Article 239AA was added to Part VIII of the constitution, which contains general provisions relating to the administration of Union territories. This article provided for an assembly, fully elected, and a council of ministers responsible to the assembly. It conferred on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police, and public order.
THE RELEVANT LAWS
The laws relevant to understanding the relation between the Lieutenant Governor and the Chief Minister in Delhi are:
- Article 239AA of the Constitution,
- The Government of National Capital Territory of Delhi Act, 1991 (GNCT Act),
- The rules formulated under this Act (Transaction of Business Rules), and the relevant judicial pronouncements.
- The recently passed ‘Government of National Capital Territory of Delhi (Amendment)’ Act, 2021.
The relationship between LG and CM: It needs to be said that the precise contours of the sharing of powers between the Lieutenant Governor and the Delhi government are a grey area. The crucial constitutional provision relevant to the issue is Article 239AA (4) which says: “There shall be a Council of Ministers… in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has the power to make laws, except in so far as he is, by or under any law, required to act in his discretion.”
DELHI’S PECULIAR NATURE
While this justification for the Chief Minister to appoint the Chief Secretary may hold good for States, is it the same for Delhi? Delhi is a peculiar case, neither being a State, nor a Union Territory. So, Article 239, which deals with Union Territories, does not apply to Delhi. Instead, Delhi is governed by Articles 239AA and 239AB, introduced by a constitutional amendment in 1991.
The crucial constitutional provision relevant to the issue is Article 239AA(4). Two conclusions can be drawn from reading the provision, Article 239AA (4):
- The Lieutenant Governor will have to make decisions based only on the “aid and advice” of the Chief Minister in the exercise of all matters on which the Legislative Assembly has the power to make laws. Consequently, the Legislative Assembly of Delhi has the power to make laws on all matters in the State List and the Concurrent List in the VIIth Schedule of the Constitution, except entries related to public order, police, and land. (See, Article 239AA(3)); and conclusion
- The Lieutenant Governor can act at his own discretion only when there is a specific law conferring this discretion on him. Section 41 of the GNCT Act deals with the discretionary powers of the Lieutenant Governor. There is no such law granting discretion, to the Lieutenant Governor for making such appointments currently.
ABOUT THE NCT (AMENDMENT) ACT
The NCT Amendment Act amends the Government of National Capital Territory of Delhi Act, 1991. The Act provides a framework for the functioning of the Legislative Assembly and the government of the National Capital Territory (NCT) of Delhi. The Act amends certain powers and responsibilities of the Legislative Assembly and the Lieutenant Governor.
1. Restriction on laws passed by the Assembly: The Act provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (LG).
2. Rules of Procedure of the Assembly: The Act allows the Legislative Assembly to make Rules to regulate the procedure and conduct of business in the Assembly. The Act provides that such Rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.
3. Inquiry by the Assembly into administrative decisions: The Act prohibits the Legislative Assembly from making any rule to enable itself or its Committees to (i) consider the matters of the day-to-day administration of the NCT of Delhi and (ii) conduct an inquiry in relation to administrative decisions. Further, the Act provides that all such rules made before its enactment will be void.
4. Assent to Bills: The Act requires the LG to reserve certain bills passed by the Legislative Assembly for the consideration of the President. These Acts are those: (i) which may diminish the powers of the High Court of Delhi, (ii) which the President may direct to be reserved, (iii) dealing with the salaries and allowances of the Speaker, Deputy Speaker, and members of the Assembly and the Ministers, or (iv) relating to official languages of the Assembly or the NCT of Delhi. The Act requires the LG to also reserve those Bills for the President that incidentally cover any of the matters outside the purview of the powers of the Legislative Assembly.
5. LG’s opinion for executive actions: The Act specifies that all executive action by the government, whether taken on the advice of the Ministers or otherwise, must be taken in the name of the LG. The Act adds that on certain matters, as specified by the LG, his opinion must be obtained before taking any executive action on the decisions of the Minister/ Council of Ministers.
CONSEQUENCES
1. Committees will cease to exist: The committees of the Delhi assembly including the Public Accounts Committee, the Public Undertaking Committee, etc. Will cease to exist as the rules under which they are set up will become void because these committees scrutinize, inquire into or investigate the decisions of the government.
2. No responsibility of LG for the Delhi legislative assembly: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
3. Non-functional government: The elected government of Delhi will wait endlessly for the LG’s opinion without being able to execute their decision. So, the decisions of the cabinet or of the ministers will mostly remain on paper only. Thus, the government will become non-functional.
CRITICISM
1. Negates Cooperative Federalism: This move by the Government of India, not just negates cooperative federalism, but also undermines constitutional norms, democracy, and even the Supreme Court of India’s constitution bench court judgement.
2. Weakens Federal Structure: This will weaken the federal structure of this nation. In a large country like India, with diverse cultures, languages, religions this diversity has to be celebrated.
3. Backward-looking legislation: When the government of India Act, 1935 was enacted, our freedom fighters had also fought against the overriding powers given to the Governor-General. Unfortunately, this bill takes us back to the British era and disempowers an elected government that had been voted in by the people of Delhi. This act takes us back to the legislation of early independent India i.e. Nehruvian era. At that time, there was Lieutenant Governor and there was a municipal corporation. When the member for Rajya Sabha had to be elected, there was a system of elections via the electoral college. People of Delhi would only vote so that members could be elected to the Rajya Sabha. But then, there were 20 Lakh people in Delhi. Today, there are two crore people. Aspirations have grown and this voice came from the ground that the people of Delhi want their voice to be heard.
4. Constitutional Challenge: To use legislative power like this, just because the center can, also raises questions of constitutional governance and constitutional morality. A city of two crore people can’t necessarily be deprived of statehood or be given a rather watered-down version of statehood.
5. Irresponsible use of power by the center: Whenever the center usurps too many powers, it is the states that suffer, the people in the states that suffer. It is rightly said, “Power tends to corrupt, and absolute power corrupts absolutely.”
HOW CAPITAL CITIES ARE ADMINISTERED ACROSS THE GLOBE?
Large countries, especially those with a federal/quasi-federal polity, have great difficulty in allowing their capital cities to function as regular provinces.
- Washington, DC, USA: Washington DC’s residents got the right to vote in presidential elections only in 1961. Their only representative in the House of Representatives is a delegate-at-large who has no voting rights. They have no representation in the Senate. And remember, this is a country that was founded on the concept of “No Taxation without Representation”. The city has an elected mayor and a 13-member elected council, but while they can propose the city’s budget, Congress approves it. There is occasionally a desultory demand to convert DC into a state, but this has never been seriously considered.
- Canberra, Australia: Canberra (capital of Australia) is another federally-run capital, with an elected legislative assembly and a CM, such as Delhi. However, they essentially deal with health, education, and the environment. The assembly is competent to make laws, but these can be superseded by the national parliament.
- London, Great Britain: According to the official website, the mayor of London “has a duty to set out plans and policies for London covering transport, planning and development, housing, economic development and regeneration, culture health inequalities and a range of environmental issues including climate change and air quality”. However, the mayor does prepare the budget for these activities as well as for the police and fire brigade. The 25-member elected Greater London Assembly can only overturn the mayor’s budget by a two-thirds majority. It also scrutinizes the mayor’s proposal and has a monthly question hour at which the mayor, transport, and police commissioner explain their actions.
CONCLUSION: The crux of any government is in the process of the legislation and without the power to implement laws, any government will be reduced to a paper tiger. It is for this reason that the law has clearly established that where there is a legislative power, there has to be executive power. Do not deny the citizens of Delhi their rights. When they voted, it was not only pressing a button. They voted to elect people to govern them. Today, the center is denying them that right to be governed by the government they have voted to power. India’s case is a little different in the sense that LG is a political appointee of the Union Government and enjoys similar powers as governors in various states. He is a nominal head. So, the complete power of the administration of Delhi should not be vested with the LG only.
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