India is, more often than not, called a quasi-federal state, as there is a supposed separation of power between the Union and the States. However, there has been a never ending tussle to misappropriate this power between the centre and the state. With the passing of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, another chapter has been added to this long book of contention between the centre and the state. The GNCTD, introduced by the centre, has been passed by both the houses of the parliament and has raised the eyebrows of people weary of the increasing dominance of the Centre as it redefines the distribution of powers between the elected government and the President nominated Lieutenant Governor (L-G) in Union Territory of Delhi. The bill is being seen as an attempt to reduce the power of the democratically elected government, whereas increasing the power of a nominated post i.e. L-G.
The current status of Delhi being a Union Territory with a Legislative assembly was guaranteed by the 69th Constitutional Amendment Act, as explained by the Supreme Court in GNCTD v. Union of India[i], which introduced articles 239AA and 239BB into the Constitution. The constitutional amendment accompanied by the GNCTD Act, 1991, conferred upon the national capital a special status, a status that no other union territory enjoyed. The GNCTD Act, first passed in 1991 outlined the powers of the Assembly, the discretionary powers enjoyed by the Lieutenant Governor and the duties of the Chief Minister in relation to the L-G.
CHANGES MADE UNDER THE BILL
- The expression “Government” referred to in any law to be made by the Legislative Assembly in Delhi shall mean the Lieutenant Governor.
- 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.
- Through Section 5 of the amendment, an additional clause has been added to Section 44 of the 1991 act which makes it compulsory for the government to obtain the opinion of the LG on all matters before any executive action can be taken which could be considered as a measure to ensure accountability.
- Through Section 3 of the bill, there has been an extension to the powers of L-G by adding a new clause to Section 24 of the 1991 act which ensures that it covers any matters that fall outside the purview of the powers conferred on the Legislative Assembly.
- The Act prohibits the legislative assembly from making any rule to enable itself or any of its committees to consider matters of the day-to-day administration of Delhi or conduct inquiries in relation to the administration of Delhi. Moreover, the provisions have been given a retrospective effect, thus voiding all such existing committees.
However efficient the administration becomes through implementation of such provisions, it shouldn’t be at the cost of the legislation being rendered insignificant. By the virtue of it being a democratic legislature, it has the right to question and scrutinise the decisions taken by the executive, therefore provisions which restricts inquiries and shadow the accountability of the executive can’t be considered progressive and some of the aforementioned provision have the potential to do exactly that.
2018 CONSTITUTION BENCH
The matter at hand was prominently raised earlier before a five-judge bench in 2018, where the apex court held that the L-G was bound by the aid and advice of the Council of Ministers and was in no position to act independently, hence ruling that, “It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution.”[ii]
Furthermore, it was established that L-G’s concurrence is not required on issues other than police, public order, and land. Thus, ruling in the favour of the then-government of the Aam Aadmi Party (AAP). Consequently, the amendment arguably goes against the court’s ruling and the Centre counters it by proposing that in order to clear the ambiguities under the existing act over timely implementation and unclear distinctions of matters to be taken up by the L-G, the passed amendments are necessary.
STATE GOVERNMENT’S FEARS AREN’T UNWARRANTED
Although on paper the amendments appear to be promoting harmonious relations between the legislature and the executive, but in reality this could result in even more friction between the two, as decisions needed to be taken on daily basis would require going through L-G who is not bounded to give the opinion within a time-frame, which will only result in delays in various projects and schemes proposed by the state. This could be considered as an indirect attempt to limit the power of the legislative assembly, which would not go well with the current government of the Aam Aadmi Party as they have been engaged in a constant battle over policy making with the Centre. Beyond the current scenario, this could possibly make the elected government powerless against the centre backed L-G and would hinder it’s autonomy as well. The public undertaking committees’ sole purpose is to evaluate and check the decisions of the government and by prohibiting inquiries, they will also cease to exist.
Much is needed to be discussed about the Act and whether it truly undermines the federal structure is up to wider interpretation but it surely depicts the political clash between the State and the Centre once again. The bill certainly raises apprehensions and ambiguities for the Delhi Legislative Assembly which needs a proper addressing by the Centre, so as to avoid further increase in the rift between the two. The dream for full statehood for the state strays further away from reality, which was once getting closer through the 2018 judgement. This amendment seeks to nullify that exact judgement and the power struggle between the two seem to grow even more although the Centre contends that this would help streamline the functioning of the government and most of the administrative power still rests with Delhi government. There is no certainty of the outcome of this tussle except the fact that it’s fuelled by compromising the amenities of the general populace and once again the question left unanswered is that what it will take to satisfy both the sides.
[i]Govt. of NCT of Delhi and Ors. Vs. Union of India, Civil Appeal No(s).2357/2017
This article has been authored by Abhay Pratap Singh, first year law student at Gujarat National Law University. Presently contributing author at The Blue Letters.