The Rajya Sabha, on March 24, passed the Government of National Capital Territory of Delhi (Amendment) Act, 2021 reigniting the battle over jurisdictional rights between Delhi’s elected government, the Centre, and its appointed administrator – the Lieutenant Governor. But what does the Act actually amend? And why is it said to be suffering from various issues?
Though overt yet so covert!
It is often said that the opposition provides a level playing field to the government at both the central and state level. However, one of the key functions that the opposition delivers is to criticize the policies and laws brought forth by the government. The criticisms, thus made, mainly emphasize the shortcomings of the bills and policies. But what are the criticisms mainly related to in this Act? The immediate reason given by the centre for passing this act is to “give effect” to the interpretation of the Supreme Court’s 2018 judgement, NCT of Delhi v. Union of India, and elucidate the scope of clause (4) of Article 239 AA. However, is this really so? Or, are there some axes to grind under the name of a few “seemingly” overt reasons – motives? Before answering all these issues, let’s first analyze the key policies and history revolving around this act in detail.
Going against SC?
The first and the most contentious amendment is that the word “government” referred to in any law made by the legislative assembly of Delhi is to be implied as Lieutenant Governor. The issue is that through this amendment the government is trying to divert the powers from the elected “representatives” to the nominated “representative”. This ostensible difference of the letter “s” shows how the power transference through this act takes place where powers from the hands of “the government” (as is the case with the union itself, government there means “the elected representative” and “not the nominal head”) is being transferred to the “unelected” administrator. The act tries to makes the UT as a “sole domain of the L-G”.
The second contentious amendment is that it has become mandatory for the Delhi Government to seek LG’s opinion on “any” executive decisions passed in the cabinet. The Act says, “When a Bill has been passed by the Legislative Assembly, it shall be presented to the Lieutenant Governor and the Lieutenant Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President”. Also, the assembly is barred from enacting any law that would allow it or its committees to consider day-to-day administrative matters. To have a greater understanding of the issue, let’s look into the Supreme Court judgement of 2018. It laid down the following things:
- The Parliament can legislate on any matter in the state and concurrent list; however, the executive power in relation to Delhi (except for the “Land”, “Public Order” and “Police”) shall be vested in the state government headed by the Delhi C.M.
- The court ruled that in order to create a democratic and representative system of government for the NCT of Delhi, the government of Delhi should have the practical autonomy to legislate for the NCT of Delhi, as long as it has the confidence of the citizens of Delhi. And thus, the L-G is bound to act on the “aid and advice” of the Council of Ministers (except in the cases of “Land”, “Police” and “Public Order”).
- Finally, it held that the L-G can object to any matter provision brought inside the assembly; however, it should not be “every matter”. Basically, the discretionary power of the L-G was curtailed in some sense by the court.
Now, one needs not delve into the intricacies of the meaning of the three rules laid down by the court to understand the aberration brought about by the amendment. What it does is that it, violating the third rule, makes those “few matters”, which are supposed to be objected by the governor general, to “every matter”, thus showing a clear violation of SC’s ruling. Moreover, by the one of the amendments, the Parliament also made it mandatory for the L-G to “reserve certain bills” for the consideration of the President. This enunciates the motive behind the bringing of this amendment act (i.e., to curtail the power of the Delhi legislature). Besides this, the act in itself violate the very ethos of democracy by violating rule 2 of the judgement. Earlier it was the governor who was supposed to take the “aid and advice” of the cabinet; however, reversing the cause and effect, the act makes it a responsibility of legislature itself to take the assent of L-G.
Why not L-G?
Now, you may be pondering over that why I am so opposed to this Act?
What’s the harm if L-G becomes a little dominant over the legislature? My answer to you is that one of the fundamental tenets of democracy is that one should be ruled by the one who is being chosen to rule. How can you hold the accountability of the person who has merely been “nominated” and not chosen? The Delhi people, for every issue, could catch hold of the MLAs of their respective areas. It is simply impossible (except for the big guns) to reach to the L-G or the Home Minister for any problem. Thus, the act simply disregards the will of the people.
So, what lies ahead?
The Delhi government is considering to take the GNCTD Amendment Act to the Supreme Court for judicial review. This is so because they believe that it is the Supreme court whose decisions have been overturned by this amendment; so, ultimately it would be the court itself to give them some respite. Thus, even if it seems that not much can be done, the court is still standing there to do the much needed review.
This article has been authored by Basant Vijay Sagar, first year law student at National Law University, Delhi. Presently contributing author at The Blue Letters.