The GNCTD Act

With the National Capital Territory of Delhi (Amendment) Act, 2021, the Centre has usurped the Delhi government’s powers

Print edition : April 23, 2021

Chief Minister Arvind Kejriwal addressing MLAs and party workers during a protest meeting against the Central government’s Bill on increasing the Lieutenant Governor’s powers, at Jantar Mantar in New Delhi on March 17. Photo: Shiv Kumar Pushpakar

With the passing of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, the Centre has usurped the Delhi government’s powers and overturned people’s mandate in favour of the Aam Aadmi Party in Delhi.

On March 15, the Centre introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, which sought to enhance the powers of the Lieutenant Governor of Delhi, effectively handing over executive powers to the latter and stripping the elected legislature of the prominence that it deserves.

The Bill, now ratified, essentially obligates the Delhi government to seek the Lieutenant Governor’s opinion before it undertakes any executive action. It 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.…”

The Bill makes it abundantly clear that the Delhi government’s role in day-to-day administration will be negligible. It prevents the Legislative Assembly from making any rule to enable itself or its committees to consider matters of day-to-day administration of the national capital or even conduct inquiries into administrative decisions. “Any of the rule made in contravention of this proviso, before the commencement of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, shall be void,” it stipulates.

Although the Bharatiya Janata Party (BJP) government at the Centre maintains that the aim of the Bill is to bring accountability and overall transparency in governance, it has struggled to defend itself against widespread accusations of trying to overturn people’s mandate in favour of the Aam Aadmi Party (AAP), which rules Delhi, by usurping its powers and vesting it in the Lieutenant Governor of its choice.

‘Daylight power grab’

On March 22, when the Bill was passed by a voice vote in the Lok Sabha, an array of opposition leaders voiced their concern on what they felt was an assault on the federal spirit of the Constitution. Bhagwant Mann of the AAP accused the BJP of specialising in “infringing upon State government’s rights”. “The BJP is out of power in Delhi for last 22-23 years. We have won over 90 per cent of seats…. You are not able to tolerate the defeat,” he said, upholding the widespread view that this was a broad daylight power grab by the BJP by exploiting its superior numbers in the House.

Congress’ Manish Tewari said that the Bill was legally untenable, a view shared by the AAP and several legal luminaries. Said Tewari: “The present legislation is completely unconstitutional. It is a coloured, targeted and mala fide legislation which seeks to take away the representative character of Delhi government. It amends Article 239AA without following the constitutional process with regard to amendment of the Constitution. Moreover, it removes the substratum of the Constitution Bench judgment, which laid down the limits to the power of the Lieutenant Governor and the Union of India qua the NCT of Delhi.”

Also read: DISPATCHES | Union government introduces a Bill in the Lok Sabha curtailing the powers of the elected government in Delhi and arming the Lt Governor with overarching administrative powers

However, the Bill was subsequently ratified in the Rajya Sabha on March 24 with an 83-45 vote. The government in Delhi will now refer to the Lieutenant Governor in the context of all laws passed; the latter’s opinion will be mandatory before any executive action is taken. President Ram Nath Kovind on March 28 gave his assent to the Bill.

The GNCTD Act

The GNCTD Act was enacted in 1991 to “supplement provisions of the Constitution relating to the Legislative Assembly and a Council of Ministers for the National Capital Territory of Delhi”. It enabled the process of an elected government in Delhi. In 1991, Article 239AA was added to Part VIII of the Constitution which contains general provisions relating to the administration of Union Territories. This article provided Delhi an Assembly, fully elected, and a Council of Ministers responsible to the Assembly. It stipulated that the Delhi Assembly could legislate on all matters in the State List as well as the Concurrent List except land, police and public order.

The Supreme Court had in the past appreciated the 1991 developments, stating that “the real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic set-up 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.”

Point of friction

However, over the years, there was friction between the Chief Minister and the Lieutenant Governor over power-sharing. The focal point of these conflicts was that in case of a difference between the Lieutenant Governor and the Council of Ministers on any matter, the matter was to be referred to the President by the Lieutenant Governor for his decision, and pending such decision the Lieutenant Governor was empowered to take any action on the matter as he deemed right.

The Constitution Bench of the Supreme Court, in Government of NCT of Delhi vs Union of India and Another in 2018, held that the government was not under obligation to seek the concurrence of the Lieutenant Governor on its decisions and that any differences between them should be resolved keeping in view the constitutional primacy of representative government and cooperative federalism. Essentially, the Supreme Court judgment made it extremely difficult for the Lieutenant Governor to refer such matters to the President. The Supreme Court ruled that the Lieutenant Governor should attempt to resolve the differences within the framework of the law and the Transaction of Business Rules before he decided to refer a matter to the President.

The opposition’s main argument is that the latest amendment is violative of the Supreme Court ruling. It is being argued that by virtually handing over executive powers to the Lieutenant Governor, the government has acted against the spirit of the Supreme Court ruling that aimed to safeguard the elected government of Delhi from undue interferences or obstacles from the Lieutenant Governor.

BJP’s argument

The BJP has attempted to contradict such observations. It maintains that that the Bill is in keeping with the Supreme Court’s July 2018 ruling on the ambit of powers of the Lieutenant Governor and the Delhi government following several headliner controversies between the two. In the Lok Sabha, Minister of State for Home Affairs G. Kishan Reddy maintained that the amendment was aimed at addressing “certain ambiguities in the 1991 law”. He dismissed any notion of power grab, and stressed the purported fair objectives of the Bill, including enhancing public accountability and easing out technical ambiguities related to everyday administration. “This will increase administrative efficiency of Delhi and will ensure better relationship between the executive and the legislator. This is a technical Bill. This is not a Bill related to politics. There are some technical ambiguities related to day-to-day administration. It is the responsibility of Parliament to remove these,” he asserted in Parliament.

Also read: Governors doing the Centre’s bidding

However, Sanjay Singh, a member of the Rajya Sabha from the AAP, said that the BJP’s doublespeak was more than apparent. Speaking to Frontline, Sanjay Singh said, “Whereas the BJP was a votary of full statehood for Delhi for over two decades, it is now inclined to reducing the elected government in the NCT to a mere figurehead. It not only underlines their opportunistic politics, but also shows how they are unabashed about going back on their public assertions on grave issues related to public policy.”

Sanjay Singh also highlighted incidents when the Lieutenant Governor allegedly delayed decision-making deliberately to thwart the development agenda pursued by the Arvind Kejriwal government. He said this was so since Kejriwal assumed office and reflected the BJP’s enormous discomfort with his being in power (see interview).

Political observers point out that the latest amendment will greatly reduce the efficiency and timeliness of the Delhi government by making it imperative for it to hold consultations with the Lieutenant Governor even when a situation demands urgent action. The amendment stipulates that the State government shall obtain the Lieutenant Governor’s opinion on its decisions before taking executive action on them. This prevents the government from urgently acting in case of an emergency as it would have to wait for the Lieutenant Governor’s assent/viewpoint.

Significantly, the Lieutenant Governor is not obliged to give his opinion to the State government within a time frame. Critics argue that the Lieutenant Governor could politically exploit these unbridled powers to hamper the government’s administrative work and thus turn the political tides against the incumbent if he so desires. That truly would undermine the interests of the party in power and also of the people.

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