President Ram Nath Kovind on Sunday gave his assent to the Government of National Capital Territory of Delhi (Amendment) (GNCTD) Bill, that gives more power to Delhi's Lieutenant Governor now
What is NCT bill?
Delhi is a Union Territory with a legislature and came into being in 1991 under Article 239AA of the Constitution. As per the existing Act, the Legislative Assembly of Delhi has the power to make laws in all matters except public order, police and land.
What is GNCTD Amendment bill?
The GNCTD Amendment Bill seeks to enhance the powers of the Lieutenant Governor of Delhi, appointed by the President of India, over the elected government.
The Act does three major things:
- It allows the LG of Delhi to refer to the President any Bill passed by the Delhi legislature that may even incidentally fall outside the purview of the Delhi legislature. (Section 3 of the Amendment Act)
- It curtails the powers of the Legislative Assembly and its committees to look into matters of “day-to-day administration” or “administrative decisions” relating to Delhi. (Section 4 of the Amendment Act)
- It mandates that all executive actions can only be taken by the Delhi government after seeking the opinion of the LG. (Section 5 of the Amendment Act)
BEFORE GNCTD 2021 BILL:
The Delhi assembly could make laws on all subjects in the state list and concurrent list except public order, police and land. The new bill says: "When a bill has been passed by the legislative assembly, it shall be presented to the lieutenant governor and the lieutenant governor shall declare either that he assents to the bill or that he withholds assent therefrom or that he reserves the bill for the consideration of the president...”
We have seen various occasions where Center and AAP Party governing Delhi were seen in tussles at various issues of governing the State and the issue even went further to Apex Court in NCT of Delhi v Union of India (2018):
Findings from the Supreme Court judgment
To quote a few important findings of the judges in the Constitution bench judgement in NCT of Delhi:
In the opinion delivered by CJI Dipak Misra, on behalf of AK Sikri and AM Khanwilkar JJ):
“(ix) The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates [H1] that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the central Government with respect to matters which exclusively fall within their domain.”
(xii)… The status of NCT of Delhi is sui generis, a class apart, and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.” [H2]
Likewise, according to Justice DY Chandrachud:
“(17) While giving meaning and content to the proviso to Article 239AA (4), it is necessary to harmonise two significant precepts:
(i) The Constitution has adopted a cabinet form of government for the Union territory of Delhi by creating institutions for the exercise of legislative power and an executive arm represented by the Council of Ministers; and
(ii) Vital national interests are implicated in the governance of the National Capital Territory.
The doctrines of aid and advice and of collective responsibility give effect to (i) above while the empowerment of the Lieutenant Governor to refer any matter on which there is a difference of opinion to the President is a reflection of (ii) above.”
Similarly, Justice Ashok Bhushan had this to say:
“IX. For the Executive decisions taken by the Council of Ministers/Ministers of GNCTD, proviso to subclause (4) gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between decisions of the Ministers and the LG, but the Constitutional Scheme does not suggest that the decisions by the Council of Ministers/Ministers require any concurrence of the LG.”
The apex court’s ruling Government of National Capital Territory of Delhi (Amendment) Act, 2021 in case that the elected government has pre-eminence on all matters other than police, public order and land enabled Delhi AAP Govt. to turn its welfare agenda into policies e.g mechanisation of the sewage system, free bus rides to women, free electricity to those using less than 200 units of power etc. which ultimately made public follower of AAP party in Delhi and the similar following is increasing in other states also.
But if we go through the Judgement of Apex court then it seems the present act is not in consonance of Supreme Court’s Judges opinion where the powers of Delhi Legislative and Governor of Delhi were divided but after the Bill it seems Governor who was not chosen by public will be governing the Government Policies ultimately.
According to the statement of objects and reasons of the bill, to give effect to the interpretation made by the Supreme Court which had ruled that the city government need not obtain the lieutenant governor's "concurrence" of every issue of day-to-day governance, the bill has been brought.
By introducing the NCT Amendment Bill, 2021, Modi government is trying to overturn the SC verdict. It is again unethical to divert the course of justice in the country.
However, the objective stated in the bill gives the Centre’s reasoning that it seeks to achieve structural clarity in the conduct and business of the state government. It claimed that section 44 of the NCT Delhi Act 1991 had no clarity and no structural mechanism. There is also no clarity in the act as to what proposal or matters are required to be submitted to the LG before issuing orders. It is also claimed that the bill has been brought to give effect to the SC judgements of 2018, and 2019 relating to the structure of the governance in the NCT Delhi.
GNCTD SECTION WISE:
Section 3: The Assembly was free to pass a law on any subject matter within its powers granted under Article 239AA so long as it does not contradict any law made by Parliament. If the LG is of the opinion that a law so passed infringes a law made by Parliament, he can refer the matter to the President for his assent.
However, now the amendment clause 3 does is to give the LG a new power – to limit the scope of the laws passed by the Delhi Legislative Assembly.
Section 4: This clause, which amends Section 33 of the GNCTD Act relating to the powers of the Delhi Legislative Assembly to make rules for the conduct of its business, states that such rules will not cover “day to day administration” and “administrative decisions” taken in the context of Delhi.
Section 5: "Provided that before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, State Government, Appropriate Government, Lieutenant Governor, Administrator or Chief Commissioner, as the case may be, under any law in force in the Capital, the opinion of Lieutenant Governor in term of proviso to clause (4) of article 239AA of the Constitution shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.".
[H1] Balances federal structure will be demoised as the Governor who represents center govt. has power to stop any law or policies made by Delhi Legislature.
[H2] New Bill made Delhi Governor more than a Adinistrator
[Disclaimer: The views expressed are solely of the author and they do not purport to reflect the opinion or views of LawStreet Journal]