GOVERNMENT OF NATIONAL CAPITAL TERRITORY (NCT) OF DELHI (AMENDMENT) ACT 2021-A CRITICAL ANALYSIS

Author- Sakshi Komal Dubey*

Editor- Manishikha Mondal

On Mar. 28, 2021, President gave his assent to the Government of National Capital Territory (NCT) of Delhi (amendment) Bill, 2021 [1], making it an Act. The Bill was passed in both the houses by voice vote amidst strong disagreement and various walkouts of the ministers from the House. The ruling government at the Centre quotes it as a move in a consensus of the Supreme Court ruling of 2018 over Government of NCT of Delhi v. Union of India [2]. In contrast, the opposition termed it as a "sad day for democracy." So, what is the actuality of the Act, and how will it affect the administration of New Delhi?

HISTORY

The power struggle for Delhi goes back to 1951 between the first Chief Minister of New Delhi, Chaudhary Brahm Prakash, who led his term with the Legislative Assembly, and Union Home Minister Govind Ballabh Pant [3]. Then came the State Reorganization Act, 1956 [4], which stripped the existence of the Chief Minister in Union Territory and was set to be governed by an Administrator, i.e., Governor appointed by the President. Fast forward ten years, the Delhi Administration Act, 1966 [5] came into being; it vested limited representative powers to the government holding a seat in Delhi. Later, the Balakrishnan Committee in 1989 recommended that Delhi remain a Union Territory but with the exception of having Legislative Assembly and Council of Ministers. The 69thth Amendment Act came through based on the Balakrishnan Committee report, and thus the National Capital Territory of Delhi (GNCT) Act, 1991 [6] was passed.

Furthermore, the roots of the present Bill go down to the 2015 administrative tussle between Aam Aadmi Party (AAP) government and the then Lieutenant Governor Najeeb Jung. The LG refused to send files regarding three reserved subjects- land, public order, and police to the Chief Minister's office. Many orders such as the setting up of Commissions, transfer of bureaucrats, and administration of the Anti-Corruption Branch (ACB) proclaimed by AAP during its second tenure were either declared void or were reversed by LG, citing procedural cracks. To which the reaction of the incumbent Chief Minister was approaching the Delhi High Court.

ABOUT THE ACT

"The Constitution Bench in its judgment of 2018, and Division Bench, in its judgment of 2019, interpreted the provisions of Article 239AA [7] of the Constitution relating to the structure of governance in National Capital Territory of Delhi." In order to give effect to the interpretation made by Hon'ble Supreme Court in the judgment mentioned above, the Bill, seeks, "to clarify the expression "Government," which in the context of legislation to be passed by the Legislative Assembly of Delhi, shall mean the Lieutenant Governor of the National Capital Territory of Delhi." To simplify, the "government" mentioned under any legislation of and for Delhi means Lieutenant Governor.

The Bill seeks to ensure that the "Lieutenant Governor is necessarily granted an opportunity to exercise power entrusted on him under Article 239AA (4) of the Constitution. However, the power could be exercised by LG in exceptional cases. Also, LG can only make rules in matters that incidentally encroach upon matters falling outside the preview of the Legislative Assembly", as mentioned in its Objective and Resolution. Elucidating, in the matter of dispute, the LG has the power to approach the President, and in urgent cases, his decision will prevail over the Chief Minister's decision. The Bill also vests the power in Lieutenant Governor to refer all sundry executive decisions to the President at his discretion. Moreover, the LG himself has the power to identify matters on which his opinion is needed and not the Parliament.

CONSEQUENCES

The Union Government claims that the Bill has been tabled to clear ambiguities around the meaning of "Government" concerning Delhi's territory and its government. The central government believes that the Act and its definition will bring transparency and cooperation and help in the smooth functioning of the region.

The intense outrage of the present "elected" Delhi Government over the Act seems absurd; in 2015, the Delhi Government itself accepted the interpretation of "government" as Lieutenant Governor. This happened when The Delhi Netaji Subhas University of Technology Bill [8] was sent back to the Legislative Assembly by the President over an inconsistent definition of the term "Government." The Legislative Assembly modified the government's definition to "Lieutenant Governor of NCT Delhi appointed by the President" [9].

Delhi, the national capital, representing India at the international forum, being dome to Centre Government, Embassies, Judiciary, and various other essential ministries deserves utmost attention when it comes to security and cooperation. Also, Union Minister G. Kishan Reddy states, for maximum collaboration, "distinct delineation of roles and responsibilities, removal of ambiguities and the definition of a clear chain of command" is necessary.

In 2016, when Delhi Government took the matter to the High Court over clarification of "competent authority." The Court declared that the LG has "complete control" over the issues of NCT. However, the judgment also mentioned that the LG was bound by the "aid and advice" of the Council of Ministers. The Delhi Government then approached the Supreme Court wherein it was held that the "real authority to take decisions lies in the elected government" and LG "is an "administrative head" in the limited sense, and is not a governor." The elected government need not obtain LG's concurrence over each and every decision taken and shall only be informed about LG's "well-deliberated" decisions. While the elected government needs to communicate all decisions to the LG, his concurrence over all of them is not needed, as stated by the Apex Court.

The answer to the question of how the legislation is in concurrence with the Supreme Court's 2018 decision is still unclear. Has the Parliament legislatively overruled a judgment? The legislation is the complete antithesis of the Supreme Court's 2018 judgment. Moreover, it does undermine the Court's interpretation of Article 239AA and its efforts to not give more prominence to the elected government than LG. As per the 2018 judgment, the LG either had to act on aid and advice of the Council of Ministers or abide by the recommendations made by the President, in exceptional practice.

The LG had not been entrusted with any independent decision-making power. The ratio of the judgment amplifies that an appointed administrator should not shadow the elected government. The Division Bench judgment of 2019, which has been referred to a larger bench, held that though the LG has the freedom to develop an opinion on matters of governance of the Union Territory but "any" should not be interpreted as every "trifling matter" and LG should refrain from intervening in every small matter of governance but should ponder only in fundamental issues of Delhi.

The application of the Bill will not only decrease the validity of the elected government to a mere stunted organ. Still, it will also nullify the mandate of the citizens, which is exercised by voting and elevates the power of centrally appointed administrators. The whole idea of exercising choice via vote is of being represented by a representative to whom the citizens have assigned the duties.

CONCLUSION

"Interpretation cannot ignore the conscience of the Constitution."

Experts believe that the amendment will take the administrative clock back decades to the Delhi Metropolitan Council era, which was considered a mere municipal body, which snatched the citizen's rights to vote [10]. While another view has been that Delhi has always been a local administrative body headed by an administrator. The immediate impact of the Act will be on the administrative committees created by the Legislative Assembly cause they will be rendered void as the power to decide upon the executive issues has been shifted to the Lieutenant Governor.

In Samsher Singh v. the State of Punjab [11], the Court in its judgment held its view against the glorification of a sole individual, i.e., the Lieutenant Governor, as it will reduce elections to "Dead Sea Fruits."Though Delhi has been conferred a special status, it is nowhere justified that the choice of the citizens should be ignored. More importantly, we need to bring our focus on the three Union Territories which have Legislative Assemblies, out of which two have President's Rule, and the other Delhi has been brought under the Government of National Capital Territory (NCT) of Delhi Act. The application of the Act will either directly or indirectly make the Legislative Assembly "administratively impotent" and citizens of the capital "electorally impotent." Many Ministers have demanded the government refer the Bill to a Select Committee of Parliament.

The crux of democracy is its representative characteristic which seems to be taken away and replaced by one individual who is a nominee. The whole country will have to vote against the party holding the seat at the Centre to change that nominee. A federal structure of India injects that Union does not command over State and lets the States govern without any reasonable interference of the Union. Now it's the Court's duty, the deemed haven, the highest interpretative body, to decide according to the basic structure of the Constitution and constitutional morality.

REFERENCE

1. Government of National Capital Territory (NCT) of Delhi Bill, Acts of Parliament, 2021 (India).

2. Government of NCT of Delhi v. Union of India 2017.

3. Sanjay Hedge, Delhi's administration as the tail wagging the dog, THE HINDU (Mar. 23, 2021, 00:03 AM), https://www.thehindu.com/opinion/lead/delhis-administration-as-the-tail-wagging-the-dog/article34135140.ece.

4. State Reorganization Act, Acts of Parliament, 1956 (India).

5. Delhi Administration Act, Acts of Parliament, 1966 (India).

6. National Capital Territory of Delhi (GNCT) Act, Acts of Parliament, 1991 (India).

7. The Constitution (Sixty Ninth Amendment) Act, Acts of Parliament, 1991 (India).

8. Delhi Netaji Subhas University of Technology Bill, Acts of Parliament, 2015 (India).

9. G. Kishan Reddy, A step that enhances cooperative federalism, THE HINDU (Apr. 01, 2021, 00:02 AM), https://www.thehindu.com/opinion/lead/a-step-that-enhances-cooperative-federalism/article34209342.ece.

10. Jatin Anand, Governing Delhi, THE HINDU (Mar. 21, 20201 03:03 AM), https://www.thehindu.com/news/cities/Delhi/the-hindu-explains-what-has-the-bill-on-the national-capital-territory-proposed-and-how-will-it-impact-the-administration/article34120012.ece.

11. Samsher Singh v. State of Punjab 1974 AIR 2192, 1975 SCR (1) 814.

*The Author is a 1st Year law student at Vivekananda Institute of Professional Studies.

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.