GNCTD (Amendment) Act 2021 – Depriving Delhi's People of Elected Govt
Authored By: Devashish Tiwari
The situation at Delhi resembles that of those times when the nation was in a state of emergency. The government of National Capital Territory [hereinafter “NCT”] of Delhi looks hapless as they can’t figure out as to what they should focus first on, the dreaded situation in the hospitals because of COVID-19 or the recent Government of National Capital Territory of Delhi (Amendment) Act, 2021 [hereinafter “GNCTD (Amendment) Act, 2021”]. The Central Government with a single stroke notified the GNCTD (Amendment) Act, 2021 on 28th April 2021, giving more teeth to the Lieutenant Governor [hereinafter “LG”] thus enabling him to exert his absolute control on the administration of Delhi by adjudging him as the “government”. The GNCTD Amendment goes against the interpretation of the Supreme Court wherein it was exhorted that the Delhi Government has the autonomy to conduct its affairs without undue interference and concurrence from the LG. The GNCTD Amendment has a chilling effect on Article 239AA and Article 239AB by ripping the government of its entrusted powers by the constitution. The GNCTD Amendment has the effect of undoing the ruling of the landmark judgment, Government of NCT of Delhi vs. Union of India and Ors. in the year 2018, whereby the Supreme Court settled the political bickering between the State Government and Central Government, by demarcating the powers among the two, however by the means of GNCTD Amendment same has been undone. The Central Government arrogated the power of the State Government to LG, therefore imperiling the settled legal interpretation. The article dwells on how the GNCTD Amendment goes against the 10 Supreme Court interpretation, constitutional framework, and its repercussions, all of which shall be discussed at a later stage. Violation of Article 239AA – A Grave Affront to the Constitution The 69th amendment of the Constitution assumes great significance in the present imbroglio. It led to the induction of two Articles – 239AA and 239AB that engrafted the Delhi Government with the legislative assembly, whose membership is elected by direct elections. Delhi was commended with the legislative assembly to exercise autonomy in lawmaking concerning matters enumerated in the state list and concurrent list except for land, police, and public order. The legislative assembly with the chief minister as its head is required to advise the LG on the matter of legislative competence of the state unless the LG has a legal obligation to act at its discretion. Article 239AA led to the establishment of the accountability of the council of ministers towards the legislative assembly. It was also enumerated that in case of a difference between the LG and Delhi Government, the same shall be referred to the President. Article 239AB authorized the President to suspend the operation of Article 239AA of the constitution. Article 239AA is an astute mechanism to administer Delhi by the introduction of the legislative assembly, making the elected council of ministers accountable to the legislative assembly, giving the citizens of Delhi a constructive role in their governance. Delhi being albeit not a state but a union territory, however, was treated as a class of its own curtsey of the constitutional provisions of Article 293AA and 293AB. The move was aimed at decentralizing the power at the center and providing greater autonomy to State Government in matters contained in the concurrent list and state list except for land, police, and public order, furthering the federal balance. In 1989, the Balakrishnan committee submitted its report, which highlighted the administrative inadequacy in Delhi owing to an influx of population. The report strongly mooted in favor of the legislative assembly with the entrusted requisite powers to secure permanence and stability to deal with aspects that have a bearing on the citizens of Delhi. The report was advanced in the form of the 69th constitutional Amendment to safeguard the democratic rights of the citizens of Delhi, which could otherwise be eroded by an unaccountable form of governance and by preventing overlapping of authorities since Delhi was a National Capital. The special status of Delhi among union territories was recognized by New Delhi Municipal Corporation v. State of Punjab. Therefore Delhi despite being a union territory was given a 11 legislative assembly, unlike other union territories. By amending Sections 21 and 44 of the GNCTD Act 1991, whereby LG has been adjudged the status of the “Government” and taking concurrence from the LG in pursuance of any executive decision has become an obligation of the elected government. The status of the LG has been unilaterally elevated from titular head to full-fledged government. The interpretation of the Apex Court and Article 239AA(4) mandates that LG is bound by the “aid and advice” of the council of ministers. The GNCTD Amendment goes against the interpretation of the Apex Court and Article 239AA(4) by making a legal obligation of the state government to take concurrence from the LG on executing any administrative and legislative decision. It’s a settled legal proposition that executive power is coextensive with that of legislative power, as stated in Article 73 and 162 of the constitution besides being upheld in Rai Sahib Ram Jawaya Kapur Case among many others. By the means of this amendment, making it obligatory upon the government to obtain consent from the LG in every legislative decision impinges on the sovereign lawmaking authority of the state government to be exercised through legislative assembly and executive power, which is co-extensive with that of legislative power, which goes against the intent of the 69th constitutional Amendment. Article 239AA(6) establishes the accountability of the elected council of ministers towards the legislative assembly. Every decision taken by the executive has to be accredited by the legislature, the essence of the parliamentary form of government. The GNCTD Amendment offsets the power of the Delhi Government to regulate its administration, the legislative assembly wouldn’t be able to scrutinize the laws made by it. It negates Article 239AA(6), encompassing executive accountability by bearing away the authority to inquire and investigate. The Amendment has reversed the roles between the state government and LG. The effect of the GNCTD Amendment is in direct negation with Article 293AA. Interpretation of Article 239AA of the Constitution by the Supreme Court In 2018, the Apex Court had the opportunity to deal in length on the interpretation of Article 239AA of the constitution, when the political slugfest between the Central and State Government reached the Supreme Court. The Apex Court in unambiguous terms held that LG 12 lacks any independent decision-making powers. LG is solely bound to act on the aid and advice of the council of the ministers. The LG should refrain from obstructing the executive actions of the State Government and can’t stall the decisions mechanically in pursuance of its constitutional functions. The court adjudged the council of ministers headed by the CM as a final authority in matters related to the administration of Delhi. The Apex Court also dwelled on the GNCTD Act, 1991 and Transaction of Business Rules to profoundly interpret the relationship between the LG and State Government. The Court deduced that the rules intend to keep the LG in the loop and synergy with all the proposals. The Supreme Court clarified that no concurrence is required from the LG, though in case of any difference, LG is authorized under Article 239AA(4) to refer the matter to the president after due consideration and making all attempts to resolve the dispute within the available legal framework. The court stressed the need to have a harmonious working relationship between the State Government and the LG.
Democratic Rights of Voters and Federal Structure of Cooperative Federalism
In a democracy, the people have a right to be represented and governed by the government of their choice. To actualize it in Delhi, the 69th amendment was introduced in the constitution to provide Delhi with a legislative assembly, bestowing legislative and executive independence to the capital in its operations. Subsequently, the people of Delhi fabricated a right to govern themselves in various matters, through the elected government. By the means of the GNCTD Amendment, the authority has been transferred to the LG from the elected government, under the aegis of the Central Government, making the vote of the voter futile since eventually it is going to be the Central Government through the LG that is going to conduct the operations by administering its consent on the policies. The said development has enlarged the authority of Central Government over subdued State Government, by using LG as an instrument to administer Delhi indirectly. The GNCTD Amendment impinges on the democratic right of the voters since LG will administer Delhi, who didn’t even contest the election. The democratic rights of the voters have been crumbled because the Government in NCT of Delhi now means LG, appointed by the President of the country. The LG is supposed to be the titular head of the state but the GNCTD Amendment upholds that each administrative decision of the Delhi Government first needs to run through the LG thus causing federal imbalance. It’s a regressive step and pushes back the 13 clock back to the pre-1990s.
Central Government has always used LG as an instrument to constantly thwart the functioning of State Government like in anti-Sikh riots case, delivery of ration at doorstep scheme, reopening of the weekly market, 24 Hours anti-corruption helpline, CNG fitness scam, they have been often seen at loggerheads. LG is an administrative head, bound by the aid and advice of the council of ministers, whose concurrence is not required by the State Government; from the above instances, one can infer that LG has mostly acted to stonewall the policies of the democratically elected government, denoting overreach. One can’t rule out the possibility of the LG interfering in the future as well. The repercussions of the GNCTD Amendment are far-reaching; firstly, obtaining concurrence from the LG a legal obligation will inordinately delay the execution of the policies and law in the administration of Delhi. Secondly, various committees working under the aegis of the Delhi Government shall cease to exist since the authorities to inquire and investigate have been ripped by the GNCTD Amendment. Thirdly, the rules for everyday administrative decisions can no longer be made by the Legislative Assembly or by any of its committees. GNCTD (Amendment) Act, 2021 prima facie appears to overshadow the powers of the Delhi Government. The Supreme Court 2018 ruling has been overlooked by the Centre. The amendment shows the sheer desperateness of the Centre to rule over Delhi though indirectly. The challenges which lie ahead in front of the Delhi Government will be in terms of slow administrative decisions, leading to imperceptive implementation at ground levels for the public. The democratic rights of voters in a country where cooperative federalism was supposed to transpire through the constitution now seem dormant and the probability of its rekindling in near future looks like a distant memory. As the matter has reached the Delhi High Court, the onus is on the court to undo the disregard meted out to the interpretation of the Apex Court and to restore the status quo. The court should seize the opportunity by nullifying the impugned amendments and uphold the democratic rights of the voters by granting the national capital its legitimate right of autonomy in administering its concerns as established by the 2018 Supreme Court verdict.