The Government of National Capital Territory of Delhi (Amendment) Act, 2021, passed by Rajya Sabha following an uproar and subsequent walkout by the Opposition, on March 24, has once again revived the fight over jurisdictional powers between Delhi’s elected government, the Centre and its nominated administrator – the Lieutenant Governor. Delhi chief minister Arvind Kejriwal, who had won a pyrrhic victory in July 2018 following a five-judge Constitution Bench verdict from the Supreme Court that had settled Delhi’s power arithmetic in the elected government’s favour, has decided to challenge the amended GNCTD Act in the apex court.
Critics of the amendment – Opposition politicians, several legal luminaries and votaries of federalism – have unanimously dubbed the amended law as unconstitutional. Kejriwal’s Aam Aadmi Party claims the BJP-led central government has brought the new law out of vengeance as the saffron party lost three consecutive assembly polls in Delhi to AAP.
The BJP, on the other hand, claims that there is nothing unconstitutional in the law and that it merely seeks to clear the ambiguities that existed in Article 239AA, a special provision made in the Constitution in 1991 through the 69th Amendment to give Delhi a legislature, the GNCTD Act 1991 and the Transaction of Business Rules (TBR), 1993. The complex power structure of Delhi, on account of its status as a national capital where jurisdiction over different subjects is split between the central and the Delhi government, is executed through the provisions of Article 239AA, the GNCTD Act 1991 and TBR 1993. The Centre has also asserted that the amended GNCTD Act was necessary for proper implementation of the Supreme Court’s 2018 Constitution Bench judgment.
The SC had, in its 2018 verdict, stated that the Delhi L-G is bound to act on the “aid and advice” of the city-state’s council of ministers in all matters that fall under the state legislature’s jurisdiction – the excepted issues being land, public order and police, all of which are under central jurisdiction. There is also no clarity yet in Delhi on who controls Services (the bureaucracy) in Delhi – the L-G or the elected government.
So, what exactly does the amendment mean for Delhi and why have the changes in the law triggered an uproar? Broadly speaking, four changes have now been made to the GNCTD Act. Here’s what these four changes are and what they could, potentially, mean for Delhi, its elected government and the L-G.
* The expression Government referred to in any law to be made by the Legislative Assembly shall henceforth mean the Lieutenant Governor.
Effectively, this means that the nominated administrator – the L-G – and not the elected representatives or the Executive will mean the Government of NCT. While this definition may sound bizarre, it is true that as per the General Clauses Act, 1897, the President and the Governor are titular heads of the central and state governments respectively. As Union territories – and Delhi is, per the Centre’s explanation not a full-fledged state but a union territory with some unique features of a state – have a centrally-appointed administrator, namely the L-G, the Centre feels there is nothing wrong in using the expression L-G as interchangeable with the Government.
Several legal and constitution experts, such as former Lok Sabha secretary general PDT Achary, NALSAR University of Law vice-chancellor Faizan Mustafa, Congress MP and senior advocate Abhishek Manu Singhvi, among others, believe the Centre’s argument to justify the new definition of government in Delhi is problematic. They variously say that since the L-G is the Centre’s nominee and not part of the elected government, it is not binding on him – despite being called the Government as per the amendment – to act by Delhi’s laws, policies and schemes adopted by the Delhi Assembly or proposed by the state’s council of ministers. Also, if political instability or some other situation warrants the implementation of the President’s Rule in Delhi, how will the L-G recommend this to the President since he and not the elected representatives will constitute the government?
The 2018 SC judgment had said about the responsibility of the State, the Centre and the L-G: “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.”
* Conduct of business in the Delhi Legislative Assembly will have to be consistent with Rules of Procedure and Conduct of Business in the Lok Sabha.
This means that the Delhi Assembly will have to adopt the same conduct rules as the Lok Sabha. Under the constitutional scheme, every Legislature is unique. As Singhvi pointed out in the Rajya Sabha, while it is true that the conduct rules for various Assemblies are similar, there is no law or constitutional provision that dictates uniformity in conduct rules of different legislatures, and certainly, none that says an assembly’s rules must be the same as those of the Lok Sabha. It is important to point out that even the conduct rules of the Rajya Sabha and the Lok Sabha aren’t the same, despite both being Houses of Parliament.
* The Delhi Legislative Assembly shall not make any rule 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.
It’s a retrospective clause that forbids the Assembly from even constituting its oversight committees for Delhi’s administration and stipulates that all presently existing committees will also become void once the Amendment comes into effect. This would also mean that the Delhi Assembly will not be able to form any committees to scrutinize actions, laws, etc. of the state government in the future. The Centre has argued that this change in the law is necessary because the Delhi Assembly doesn’t have powers over subjects like public order, land, police and services and so, its in-house committees cannot be allowed to examine issues related to these restricted matters. Critics say the position on the jurisdiction of the Delhi Assembly had been spelt out lucidly by the SC in the 2018 verdict and that successive governments in Delhi have accepted the constitutional position regarding the Centre’s jurisdiction over these excepted matters, hence there was no need for such a change. Additionally, there’s the obvious question this change triggers: if the Delhi Assembly can’t have oversight committees on the actions of the legislature and the state government, what purpose will its elected representatives serve – will they exercise oversight on the goings-on in legislatures of other states or the Lok Sabha?
The SC verdict had said about powers of the Delhi assembly: “A conjoint reading of clauses (3) (a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List.”
* Before taking any Executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, the opinion of the L-G shall be obtained on all such matters by a general or special order by the L-G.
Though Article 239AA, the original GNCTD Act and TBR 1993 also mandate the Delhi government to seek the opinion of L-G, this amendment, astronomically expands the L-G’s powers. Though the amendment doesn’t say that the L-G’s concurrence is also required before the elected government implements its legislative or policy agenda, this change in the law, effectively could stall any initiative of the state government if the administrator doesn’t agree with it. So, while the law may say the opinion of the L-G must be sought, the amendment, in practice, may mean that not just his opinion but also his concurrence is mandatory. This is in complete violation of the SC verdict which categorically said the concurrence of the L-G is not required.
Besides the obvious problem of delay in legislative business due to the difference of opinion between L-G and the elected government, this amendment will also mean that the general working of the government will slow down. Consider an example: during a health emergency such as the Covid pandemic, there are bound to be fast-paced developments in Delhi with issues regarding hospital beds, migrants, schools, et al. Now, if the government wanted to quickly bring a policy to address these emerging issues, it would first need the opinion of the L-G. If the L-G decides to sit over the file, the government wouldn’t be able to go ahead with its policy as the law now stipulates that the administrator’s prior opinion on “any executive action” is mandatory.
The SC verdict had said about the powers of the L-G: “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 verdict had, further, concluded: “The meaning of ‘aid and advise’ employed in Article 239AA (4) has to be construed to mean that the L-G is bound by the aid and advice of the Council of Ministers and this position holds so long as the L-G does not exercise his power under the proviso to clause (4) of Article 239AA… The L-G has not been entrusted with any independent decision-making power. He has to either act on the 'aid and advice of the Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. The words “any matter” [referred by the L-G to the President] employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances… The decisions of the Council of Ministers must be communicated to the L-G but this does not mean that the concurrence of the L-G is required.”