Seeds of AAP vs BJP conflict sown in amendments to GNCTD Act in 2021

They attempt to take away fundamental functions of a Legislature, thus violating the Constitution.

Lt. Governor of Delhi Vinai Kumar Saxena (centre) with Chief Minister Arvind Kejriwal (left) and Deputy Chief Minister Manish Sisodia during a meeting in New Delhi on June 8. | Photo Credit: PTI

The present Legislative Assembly in Delhi was established under Article 239AA, which was enacted by Parliament through an amendment in the Constitution in 1992. Under Article 239AA (2), a supplemental law to give effect to the constitutional provisions establishing the Legislative Assembly was also enacted by Parliament along with the Constitution amendment. This law is called the Government of National Capital Territory of Delhi (GNCTD) Act, 1992.

In fact, representative government has had a chequered history in Delhi. In the 1950s, Delhi had a full-fledged Assembly with a Chief Minister heading a Council of Ministers. Chaudhary Brahma Prakash, a veteran Congress leader, was the first Chief Minister. After the reorganisation of States, Delhi lost its status as a State and became a Union Territory under the direct control of the Union government. But there were demands for restoration of the status of a full-fledged State to Delhi, which became the subject of examination by specially appointed commissions.

Finally, it was decided to give Delhi an Assembly and a Council of Ministers which is responsible to the Assembly. Delhi being the capital of the country, Police, Public Order, and Land were kept out of the jurisdiction of the Assembly. In other respects, the Delhi Legislative Assembly has all powers vested in a State legislature. The Lieutenant Governor, as the representative of the Union Government, has direct control over Police, Public Order, and Land. In respect of other matters in the State list as well as the concurrent list, the Lieutenant Governor is required to act on the aid and advice of the Council of Ministers. Thus, the Government of the NCT of Delhi, constitutionally speaking, is the Lieutenant Governor with the Council of Ministers to aid and advise him. The concept of a Governor being aided and advised by the Council of Ministers, as has been clarified by the Supreme Court through its numerous judgments, means that executive power is vested in the Council of Ministers and not in the Lieutenant Governor, who can act only in accordance with such advice. In other words, the Lieutenant Governor cannot act independently except in matters of Police, Public Order, and Land.

Many challenges

However, this constitutional set-up in the capital has faced many challenges during the past eight years relating to the nature of the executive power vested in the State government. The genesis of the problem lies in the formation of the government by the Aam Aadmi Party (AAP), a new political formation formed by a group of idealist social activists. The inter se power equation between the government and the Lieutenant Governor, the extent of the executive power of the elected government, and so on, became contentious issues and often the Lieutenant Governor and the elected government were seen pulling in different directions. This problem was basically political and not administrative, as a different political party was running the government in Delhi.

But it must be said in this context that the seed of this conflict is in Article 239AA (4) (proviso), which empowers the Lieutenant Governor to refer any matter to the President on which there arises a disagreement between the Council of Ministers and the Lieutenant Governor. So a Lt Governor who finds a particular decision of the Cabinet not palatable to him politically could refer that matter to the President, whose decision shall be final. The decision of the President simply means the decision of the Union government. Thus, with the help of a Lt Governor, all crucial decisions which are politically important for the Delhi government can be torpedoed by the Union government by taking recourse to this constitutional provision. It is a mystery why Parliament enacted a provision such as this. It is like giving with one hand and taking away with the other. The result is that the Delhi government at all times is unsure which decision of its the Lt Governor will disagree with.

Valiant attempt by Supreme Court

The Supreme Court made a valiant attempt to clarify the law in this regard through its judgment by a Constitution Bench in Government of NCT of Delhi vs Union of India in 2018. This judgment drew a line of control between the powers of the elected government and those of the Lt Governor. On the question of the Lt Governor’s power to refer matters decided by the State Cabinet to the President on the ground of disagreement between him and the Cabinet, the Supreme Court said: “The power of Lt. Governor under the said proviso represents the exception and not the general rule which had to be exercised in the exceptional circumstances by the Lt. Governor keeping in mind the standards of constitutional trust and morality, the principles of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lt. 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.”

This exposition of the law by the apex court should have, in the normal course, settled the issue. But that has not happened. Last year, Parliament passed amendments to certain provisions of the GNCTD Act that have taken away whatever power and autonomy the government enjoyed. In fact, the above amendments were a clever ruse to whittle away the decision-making power of the Delhi State government vested in it by the Constitution. While the Supreme Court had held that there was no requirement of concurrence of the Lt Governor to Cabinet decisions, the above amendments, through a legal legerdemain, circumvented it by requiring the Cabinet to seek the opinion of the Lt Governor on most of its decisions before those decisions were implemented. In effect, it is concurrence.

The amendments further say that the Government of the Capital Territory of Delhi means the Lt Governor. This definition of the term “government” totally negates Clause (4) of Article 239AA, which clearly says that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lt Governor. Constitutionally, the government of a State is defined as the Governor with the Council of Ministers to aid and advise him. This constitutional principle is contained in clause (4) (supra). Thus, it can be seen that the amendments are a clear violation of the Constitution.

Taking away the powers of the Assembly

Furthermore, the amendments take away the powers of the Assembly and its committees by providing that neither the Assembly nor its committees can examine administrative decisions. The committees are meant to scrutinise the decisions of the government which is accountable to the legislature. If the committees of the House are barred from scrutinising the decisions of the administration, how can the legislature perform its fundamental function of ensuring accountability of the executive? The amendments flagrantly violate Article 239AA (6), which says that the Council of Ministers shall be collectively responsible to the Assembly. As a matter of fact, Parliament has no power to take away the fundamental functions of a Legislature, be it of a State or a Union Territory. Moreover, under Clause (7), the GNCTD Act is a supplemental law mandated to give effect to or supplement the provisions contained in Article 239AA. A supplemental law cannot take away the powers granted by the Constitution. Therefore, the amendments enacted by Parliament should be treated ultra vires the Constitution. The matter is before the Supreme Court now.

Delhi is a classic case of non-cooperative federalism. It is high time that the apex court restored the constitutional balance in the governance of Delhi and diffused the tension in the relationship between the Lieutenant Governor and the elected government.

P.D.T. Achary is former Secretary General, Lok Sabha.