New Delhi: Earlier this week, the Narendra Modi government introduced the Government of National Capital Territory of Delhi (Amendment) Bill 2021 in the Lok Sabha, which has set up the stage for yet another confrontation between the Centre and the Aam Aadmi Party-led Delhi government.
The bill seeks to give more powers to the lieutenant governor (L-G), who is a representative of the central government and Delhi’s administrative head.
Chief Minister Arvind Kejriwal has since called it an “unconstitutional and anti-democracy move” and Deputy Chief Minister Manish Sisodia said that the bill, if turned into law, will have “dangerous” consequences on India’s federal structure.
The AAP and the BJP have been sparring over administrative powers of Delhi’s L-G ever since the former won the assembly elections in the national capital in 2015.
Since then, the issue has led to two landmark Supreme Court judgments that attempted to demarcate the powers of the Delhi Legislative Assembly and the lieutenant governor.
The crux of this contention stems from that fact that Delhi is a union territory with a legislature, which came into being through Article 239AA that was introduced through the Constitution (Sixty-ninth Amendment) Act 1991.
The provision grants Delhi special character as a union territory with a Legislative Assembly and the L-G as its administrative head. This was also when Delhi was named the National Capital Region (NCT) of Delhi.
What does the Bill say?
The Centre’s bill amends the Government of National Capital Territory of Delhi Act 1991, which was passed to supplement Article 239AA.
First and foremost, the proposed law makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
It also amends Section 24 of the Government of National Capital Territory of Delhi Act, which deals with the L-G’s assent to bills passed by the assembly.
Currently, Section 24 states that the lieutenant governor cannot give his assent to three categories of bills, which have to be reserved for the President instead.
The amendment, however, adds a fourth category to this provision to include any bill that “incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly”.
The proposed law also amends Section 33 of the Act and bars the Legislative Assembly from making any rule that allows itself or its committees to consider day-to-day administration of the region or conduct inquiries into administrative decisions.
The bill also significantly states that any rule that contravenes this part of the law, before it was passed, will also be void.
What did the Supreme Court say?
The legal issues surrounding the administrative powers of the L-G, in light of Delhi’s special status as a UT, reached the Delhi High Court in 2015 and eventually made its way to the Supreme Court.
On 4 July 2018, a five-judge Constitution bench of the Supreme Court ruled that Delhi is not a state and that “the status of NCT of Delhi is sui generis, a class apart”.
As the L-G is the administrator of Delhi, the bench said, he or she has to act on the aid and advice of the council of ministers on all matters except land, public order and police.
The court held that Delhi is not a state but cited its special character and the fact that it has a legislative assembly to note that the executive powers of the Delhi government will extend to all subjects on which the assembly has powers to make laws.
After this, a two-judge bench subsequently delivered another verdict on 14 February 2019, into different areas of conflict between the Centre and the Delhi government, while keeping the Constitution bench judgment in mind.
For instance, the Supreme Court ruled that while the power to appoint a special public prosecutor will lie with the NCT government, the central government holds exclusive authority over the ACB (Anti-Corruption Bureau) and the power to set up commissions of inquiry. The issue of who controls civil services in Delhi, however, remains pending.
Now, the ‘”statement of objects and reasons” section of the central government’s bill states that it “will promote harmonious relations between the legislature and the executive, and further define the responsibilities of the elected Government and the Lieutenant Governor, in line with the constitutional scheme of governance of National Capital Territory of Delhi, as interpreted by the Hon’ble Supreme Court”.
L-G’s opinion to be taken on Cabinet decisions
The “statement of objects and reasons” also seeks to ensure that the L-G is “necessarily granted an opportunity to exercise the power” given to him under the proviso to Article 239AA(4).
The proviso allows the L-G to reserve “any matter” for consideration of the President where the former has a difference of opinion with the council of ministers.
In its 2018 judgment, the Constitution bench had specifically clarified that the power under the proviso to Article 239AA(4) can only be exercised in exceptional circumstances.
“The lieutenant governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President,” the bench added.
The court had also ruled that the decisions of the council of ministers had to be communicated to the L-G but the latter’s concurrence was not required.
However, the Centre’s bill now makes it mandatory to get the L-G’s opinion in terms of the proviso to Article 239AA(4) on certain matters, before taking any executive action under any law in force in the national capital. The lieutenant governor himself is required to issue a special or general order on what these matters would be.
In other words, the L-G’s opinion would be needed before any decision by the Delhi cabinet on certain matters is implemented and he will decide what these matters will be.
Commenting on this provision, senior advocate Rajeev Dhavan said, “The L-G only has the right to be informed after the decision is taken. If he disagrees with it, he can go up to the President.”
“The very democratic basis of the earlier judgment is being sought to be reversed by making the L-G now a person who will preview everything…This is just trying to inhibit the Delhi government, rendering it as relevant as it was before the (Supreme Court) judgment,” he added.
‘Contrary to Article 239AA’
While the bill states that the amendments proposed are in line with the SC’s earlier judgment, legal experts ThePrint spoke to were divided on the issue.
Supreme Court advocate Shadan Farasat said that the bill “has an effect contrary to the text and scheme of Article 239AA of the Constitution as well as the Constitution bench judgment of 4 July and the division bench judgment of 14 February”.
“Although the statement of objects and reasons says that this is in pursuance of those orders, in fact the Bill does the opposite of what those judgments say,” he told ThePrint.
Farasat said that the amendment defining the expression “government” used in any law as the L-G is “completely vague”.
He explained, “If here it means L-G acting on the aid and advice of the Council of Ministers, then there’s no problem. That’s the present position. But if the attempt is to say L-G acting on his own discretion, then it is clearly unconstitutional.”
However, senior advocate Shekhar Naphade pointed out that Section 3(60)(c) of the General Clauses Act also clarifies that the state government “shall mean, in a State, the Governor, and in a Union territory, the Central Government”.
Similarly, Section 3(8)(b)(iii) notes that the central government shall “include…in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him”.
“On the same analogy, the government of the Union Territory of Delhi would mean the L-G … The Constitution has adopted the Governor or the President as the titular head. Therefore, the same analogy must apply to the union territory,” he asserted.
According to Naphade, the amendment only “clarifies the true position in law”.
No power to inquire into administrative decisions
Farasat also called into question the provision in the bill that disallows the Legislative Assembly from considering matter related to the day-to-day administration of Delhi.
“The whole idea of a legislature is that the council of ministers and the executive is answerable and accountable to the legislature…What will the legislature do, if they can’t keep the executive in check?” he asked.
“If this is the kind of legislature Delhi will have, then you might as well wind it up,” he added.
The SC advocate further pointed out that Section 6 of Article 239AA states that the Council of Ministers “shall be collectively responsible to the Legislative Assembly”. He asserted that this amendment therefore violates Article 239AA(6) and is a “complete subterfuge”.
Meanwhile, according to constitutional expert Gautam Bhatia, this provision is “specifically designed to nix the ongoing inquiry by the Delhi assembly into the 2020 riots”.
The Delhi Legislative Assembly constituted a nine-member ‘Peace and Harmony Committee’ in March last year to conduct an inquiry into the riots as well as consider the factors which could potentially disrupt communal harmony in Delhi.
After this, the committee summoned Facebook India Vice President Ajit Mohan in September last year. The central government as well as Facebook had told the Supreme Court that the committee itself was unconstitutional.
The matter is currently pending and the Supreme Court has reserved its verdict.
(Edited by Rachel John)