This article is written by Gaurav Kumar, a law student at Surendranath Law College, University of Calcutta. This article depicts the critical analysis of the GNCTD Act, 2021.
History has witnessed a long feud over capturing of Delhi, which has been considered the favourite seat for everyone. Recently, the parliament passed the Government of National Capital Territory of Delhi (Amendment) Act, 2021, raising the power of Lieutenant Governor of New Delhi, and further limiting the power of elected government and making the assembly ineffective. This step of the government to call the parliament for such amendment sounds unreasonable and unsettling, as the long ongoing feud between the Delhi Government and the Union Government over the administration of Delhi was settled by the apex court in 2018. The said act got the President’s assent on March 28, 2021. This act has attracted the attention of a mass of intellectuals and media, as the long-standing clash between the Delhi Government and the Union Government is likely to get aggravated. The objective of this act deems to provide exorbitant power to Lieutenant Governor diminishing the power of a democratically elected assembly. In this article, we will analyze the amendments introduced under the act, the special status of Delhi (as provided under Article 293AA) and whether the introduced act is in consonance with the Article 293AA of the Constitution of India or not.
Article 239AA; a special provision with respect to the Government of Delhi
The Parliament using its constituent power brought the Constitutional (Sixty-Ninth Amendment) Act, 1991, inserting Article 239AA and Article 239AB. The duo article deals with the administration of Delhi providing it with a special status. Both articles were added to Part VIII of the Constitution of India which deals with the general provisions pertaining to the administration of the union territories. Delhi technically a Union Territory, has been provided with an elected legislative assembly and democratic responsible government for its administration.
Article 239AA provides that the legislative assembly has the power to make laws on all matters of the state list and the concurrent list except land, police and public order. The Article specifies that the Council of Ministers shall be collectively responsible to the legislative assembly and the Chief Minister as the head of the Assembly with his Council of Ministers shall aid and advice the Lieutenant Governor in the exercise of his functions. The Government of National Territory Act, 1991 was made under Article 293AA, in order to give effect to the provisions provided under the article. The said article also elaborates a scheme stating that in case of any kind of differences between the Lieutenant Governor and the Council of Ministers on any matter, the matter shall be referred to the President by the Lieutenant Governor for his decision and in case of any delay the Lt. Governor can take any action whatever he deems suitable. Putting such a scheme under the said article was unreasonable, as it can give rise to the contention between the Government of Delhi and the Lt. Governor. The dissenting opinion of the Lt. Governor on legislative initiative and administrative policies of the Delhi Government, most often hampers the smooth administration of Delhi.
As expected, the provision became a reason for the tussle between the second time elected AAP Government and Lt. Governor in the year 2015, when Lt. Governor annulled the bureaucratic appointments of Delhi Government saying that the power of appointments and transfer vested in him. Later on, the feud started becoming serious when the Lt. Governor started intervening in day to day administrative matter of Delhi, declaring himself over the democratically elected government.
Govt. Of NCT Of Delhi vs Union Of India; End of a long ongoing feud between Union Govt. and Delhi Govt.
The long ongoing feud between the Govt of NCT Delhi and Union reached the apex court, the final interpreter of the constitution, in the matter of Govt. of NCT of Delhi vs Union of India, 2018. Earlier in a judgment, Hon’ble Delhi High Court had declared the Lt. Governor to have complete control over all matters of the NCT Delhi and the elected Council of Ministers shall have to take any decision in concurrence of the Lt. Governor. Further, the matter reached the apex court by the way of appeal where the question of law was that – Is Delhi a Union Territory with Lieutenant Governor as its sole administrator or it is a State having special status with Lt Governor bound by aid and advice of the elected government and its Council of Ministers.
The five-judge bench led by Chief Justice Dipak Misra interpreted the legislative intent of the provisions enumerated under Article 293AA. The Court stated that-
“The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinions in-laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the constitution”.
A democratically elected legislature with all powers of a state legislature, excluding the specific subjects, and a responsible government towards the elected legislature with its Council of Ministers holding executive powers, excluding the executive power of Union Government is the administrative feature provided in Article 293AA of the Constitution of India.
The Court held that the Lt. Governor is bound by the aid and advice of the elected government (AAP) except in the matter of public order, police and land. The bench further added that both the AAP led Delhi Government and Lt. Governor should work harmoniously without leaving any space for anarchy and absolutism. Justice Dipak Mishra said that public mandate is with the AAP Government, so it will be deviating from the democratic values if anyone acquires the role of the elected government. With respect to arising differences over any matter, the apex court said that the Delhi Government is not required to have the Lt. Governor’s consent and any kind of differences should be resolved in the light of constitutional primacy of the representative government and the co-operative federalism. The court added that in case of an extremely difficult condition, the matter shall be referred to the President by the LG for resolution.
Whether the act is in consonance with Article 239AA or not
The Parliament in a haste manner passed the act, reversing the Supreme Court’s decision, where the court had settled the constitutional issues between the Delhi Government and the Union Government. The said act is going to broaden the power of the Lt. Governor, bringing him in the role of the elected government and diminishing the power of the Delhi Government. The Central Government has said that the amendment is reasonable as it seeks to eliminate the existing ambiguities of Article 293AA. However, it is obvious that the said government could have done it directly bringing the constitutional amendment and amending Article 293AA but it couldn’t because the ruling government falls short of the required two-thirds majority in the Houses of Parliament, for bringing the constitutional amendment.
Clause 3 of the act, which amends Section 24 of the GNCTD Act, changes the definition of the government in the original act. It provides that the government under the act shall be now Lt. Governor and he can refer any bill to the President, even if in his view the bill falls outside the power of the legislative assembly. Simply, the clause provides exorbitant power to the Lt. Governor, seizing the power of the legislative assembly to act independently. However, the said provision seems unreasonable as the power of the Delhi Legislative Assembly is derived from Article 293AA of the Constitution of India and it can’t be curtailed through simple legislation of the Parliament. Further, the provision also goes against the principle of federalism and tries to subvert the principle set by the Supreme Court with respect to the power of the legislative assembly which includes all the matter except public order, police and land. So, the said provision is not in consonance with Article 293AA of the Constitution of India, and hence prima facia seems unconstitutional.
Section 4 of the act, which amends Section 33 of the principal act replaces the word “conduct of its business” with “which shall not be inconsistent with the Rules of Procedure and Conduct of Business in House of the People”. Further, clause (b) of the said section provides that the legislative assembly shall not make any rule to enable itself or its committees to consider the matters on a day to day administration of the capital or conduct inquiries related to the administration, and any rule made in contravention to this proviso, before the commencement of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, shall be void. The provision snatches the autonomy of the legislative assembly to draft rules of conduct and the procedure for itself as now the rules of procedure and business of conduct need to be consistent with that of Lok Sabha. The said section is anathema to the basic principles of the parliamentary democracy where the executive is accountable to the legislative. The provision also makes a mockery of the principles set by the apex court with respect to the functioning of parliamentary democracy in NCT of Delhi vs. Union of India, 2018. the Court had held that our constitution, though federal in its structure, is modelled on the British parliamentary system where the executive is deemed to have the primary responsibility for the formulation of government policy and its transmission into law though the condition precedent to the exercise of this responsibility is it’s retaining the confidence of the legislative branch of the State. So, the said provision is against the established principle of the apex court and hence, unconstitutional.
Section 5 of the act, which amends Section 44 of the principal act directly contradicts the settled role of the Lt. Governor and the Council of Ministers with respect to the administration of Delhi. The amended part interprets Article 293AA(4) as the Council of Ministers are bound by aid and advice of the Lt. Governor and no decision shall be taken without the consent of the Lt. Governor. Prima Facia the interpretation is implausible and vague as it esteems to interpret the article in the manner, that the apex court has expressly denied in its constitutional bench judgement which states that the Lt. Governor doesn’t hold power under the constitution to interfere in the administrative function of the Delhi Government. So, the provided provision sets aside the interpretation of the apex court and seems unconstitutional.
Putting the act on a constitutional check
The apex court, as the final interpreter of the Constitution of India, said in NCT Delhi vs Union of India, 2018, that “The exercise of the constituent power of the parliament is meant to confer democratic, societal and political power on the citizens who reside in the National Capital Territory of Delhi, that has been granted as a special status”. The provisions of the act are contradictory to the said interpretation as it seeks to replace the democratically elected government with the administrative head “Lt. Governor”. So, putting the provisions of the act on the constitutional check, the act seems totally unreasonable and unconstitutional.
Further, Justice Jagmohan Reddy in the Keshvanand Bharti v. State of Kerela, 1973, had said that the democratic form of government is the basic structure of the constitution and the parliament can’t amend it even through the way of a constitutional amendment. The said act is an ordinary piece of legislation, brought by the parliament using its constituent power and it ceases the power of a democratic government vesting the same into the Lt. Governor. So, it also fails to pass the constitutional check as it violates the basic structure principle as enumerated in the Keshvanand Bharti judgment.
The apex court in the People’s Union for Civil Liberties, 2002, said that the legislature has no power to set at naught the decision of the court. It can only change and enact a law on the basis of a decision given by the court. The amended act also nullifies the decision of the apex court. The legislature by setting aside the decision of the court has exercised the judicial function of the state, defying the principle of “separation of power”.
The apex court in NCT of Delhi Vs Union of India, 2018, while settling the dispute between the Lt. Governor and the elected government had adopted the principles of democratic governance and balanced federalism providing unfettered freedom to the elected government to carry its administrative business. The Parliament has no right to subvert the decision of the Supreme Court without changing the basis of it. Apparently, the act is unconstitutional as it is not in consonance with the constitutional provision of Article 293AA, as well as it unsettles the judgment of the apex court which interprets the relation of Lt. Governor and the elected Government of Delhi as vested under the aforementioned article. So, after the amended act, the Delhi Legislative Assembly with its elected government loses its real tangibility and becomes just a dummy democratic institution. Such an unconstitutional law, not only diminishes the sanctity of a democratically elected government but also tries to neglect the democratic power of the citizens of Delhi who will now elect their toothless representative (after the implementation of the act). Recently, a report of ‘Freedom House’, a United States-based non-profitable organisation marked India as a “partly free” nation. In such a situation, the parliament’s step to pass such an unreasonable act is going to degrade the democratic status of India.