The vituperative Government of National Capital Territory of Delhi (Amendment) Act, 2021

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“With power comes the abuse of power. And where there are bosses, there are crazy bosses. It’s nothing new.”  – Judd Rose

When we talk of democracy, we expect each and every structure of the democratic setup to behave in an orderly fashion, to respect the Constitution of the nation, and above all, to uphold and the choice of the citizens by respecting their mandate in accordance to the choice of government they wish to bring in power. In India, unlike the other democracies around the world, we follow the quasi- federalstructure of the government, which essentially means that it is an intermediate form of state between a unitary state and a federation. It combines the features of a federal government and the features of a unitary government. Indian model of federalism is called the quasi-federal system as it contains major features of both a federation and union. In simple terms, the states are given the power to make laws in certain areas as prescribed in the state list, the centre is given powers to make laws in areas as prescribed under the Union list and a concurrent list where both the states and Union is given the power to make laws, as per the Article 246 in the seventh schedule of the Indian Constitution. However, when it comes to Delhi, matters get a bit complicated. Delhi, unlike certain other Union Territories has been granted the power to form government by holding elections. However, there are certain areas where the Delhi government cannot interfere, like the Delhi Police, which comes directly under the order of the Home Ministry in the central government. All of these things were inscribed under the Government of National Capital Territory of Delhi Act, 1991.

However, on 15th March 2021, an amendment was brought in the Lok Sabha which changed the entire concept of the bill and threw the democratic values to the dogs. This Act, through its medium changes the very basic definition of the government of Delhi and mentions that the term ‘government’ post this amendment would be referred to the Lieutenant Governor of Delhi and not the elected government of Delhi. It is the same amendment which is present in the title and has showcased a vituperative nature by itself. Hence, once again the centre engaged itself in practices to malign the government of Delhi, hence making the saying by Judd Rose true. With the help of this article, I’ll walk the readers through both the sides, the central government’s justification and the issues raised against the move by the central government.

Let’s start with the central government’s reasons so as to why the GNCTD (Amendment) Act 2021 is not a step to crush upon the elected- government of Delhi. The entire above mentioned Act was framed in order to resolve any and every kind of administrative ambiguities present in the functions and powers of the Lieutenant Governor. They also assured the citizens of the country that the Amendment has been brought up in lines of the order passed by the Supreme Court after the court ruled under the GNCTD v. Union of India stating:

“The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic set up and representative from 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.”

Furthermore, the special legislature setup provided under the Article 239 AA of the Indian constitution also outlined the fact that in case of any kind of dispute(s) arising between the Delhi Government and the Lieutenant governor, the matter would then be sent to the President of India via the Lieutenant Governor (LG) and the latter may take any action he/she deems fit in case of a pending decision. Now this created a war between the elected- government of the Delhi and the LG. However, the Constitutional bench of the Supreme Court in the case of Government of NCT Delhi v. Union of India in 2018 then gave it away to the government of Delhi that they need not take the governor into consideration for his/her advice with respect to the matters of governance of Delhi and also asked both the LG and the elected- government of Delhi to solve the issues by keeping in mind the principle of cooperative federalism. However, the disputes between the LG and the Arvind Kejriwal led government is not something new. In 2014, there had been a dispute between the Arvind Kejriwal led government and the then Lt. Governor Najeeb Jung over the Jan Lokpal bill. In such a situation, Kejriwal dropped his government within 49 days, as the former failed to garner support on the issue in the Delhi Assembly. In 2015, again after having won 67 out of 70 seats, there was a confrontation between the government and the Lt. Governor on issues such as – appointment of Chief Secretary, ACB, VK Shunglu Committee report, AAP MLA’s camp office, Mohalla clinics, CCTV and new buses et cetera.

Now, the centre has often argued that the GNCTD Amendment Act 2021 has been put forth in order to outline the powers of the LG and to provide a crystal clarity to the administrative and legislative rights provided to the LG, which remains outside the purview of the Supreme Court, as a Union Territory is governed by a Lieutenant Governor, which responds to the President of India.Furthermore, the members of the BJP went to such extent where they termed the opposition’s uproar against the said Amendment, especially the Aam Aadmi Party (AAP) as a tool for political propaganda and the protests were being done to hide the bad deeds done by the AAP which had not surfaced till now.

Coming to the opposition’s contentions. Now, the prime contention of the opposition revolved around the change in meaning of the word ‘government’ in the Union Territory of Delhi. According to the recent amendment brought in by the centre, the word ‘government’ in the NCT would now mean the ‘Lieutenant Governor’ and not the ‘elected- government of Delhi.’ Furthermore:

  • It gives discretionary powers to the L-G even in matters where the Legislative Assembly of Delhi is empowered to make laws.
  • It seeks to ensure that the L-G is “necessarily granted an opportunity” to give her or his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is implemented.
  • It bars the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.

With respect to the above contentions, the centre government had faced a lot of criticisms. Now this Amendment also seeks to mandate the opinion of the governor in each-and-every aspect of the governance aspect and thus going against the spirit of federalism as the LG is now not limited to a time frame to give his opinion on matters presented by the Delhi Government. In a report presented by The Wire, P.D.T Acharya, the former Secretary General of the Lok Sabha pointed out a legal fallacy:

“The Government of National Capital Territory of Delhi Act, 1991 was enacted by parliament as a legislative measure to give effect to the provisions contained in Article 239AA. It is a supplemental law and is intended to deal with incidental matters. As a supplemental legislation, it cannot travel beyond the provisions contained in Article 239AA. Clause (4) of this Article says that the LG will act on the aid and advice of the council of ministers which means he can act only on the aid and advice of the council of ministers except in respect of the excluded items. The Supreme Court has settled the law in this matter by declaring that the state government can take decisions and execute them without taking the concurrence of the LG. The proposed amendments, which require the government to obtain the opinion of the LG before action is taken, do not give effect to clause (4) and are neither incidental nor consequential. A legislative proposal cannot be incidental or consequential if the effect of it is against the parent law or constitution. The above amendment thus violates Article 239AA (7) and is therefore invalid.”

However, even with so many loopholes which point towards the centre’s attempt to take over NCT Delhi, the Amendment was passed in the Lok Sabha and Rajya Sabha on 22nd March, 2021 and 24th March, 2021 respectively. However, an effort has been made in the form of filing of a plea in the Delhi High Court which states that the GNCTD Amendment Act 2021 is ultra vires to the Constitution of India and stands at a clear violation of Article- 13, 14, 19 and 239 AA of the Constitution of India. The court has ordered the Centre to reply and the date of hearing has been set to 4th June, 2021.

In conclusion, I would implore my readers to leave all their political ideology/ideologies and give it a thought from the legal point of view. The BJP has tried hard and has failed consecutively to form a government in Delhi against the Arvind Kejriwal government. Hence, the BJP’s move to conquer Delhi by hitting below the belt is nothing but a move which could either lead to Delhi’s complete devastation or a proper growth. Why don’t I pick any sides?

Because Rome wasn’t built in a day!

Abeer Tiwari =Writer Bharat Bhagya Vidhatha

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