Anchal Bhatheja
The Genesis
As things stood immediately after the independence, the states in India were regulated by directly elected legislative assemblies and union territories were regulated by the administrator who was appointed by the Central Government.
Starting from 1987, the issue of whether Delhi should stay a union territory or it should be granted statehood was widely debated by various committees.[1] One side of the debate was that conferring statehood on Delhi would lead to better representation of the people of Delhi, which had been witnessing a huge influx of population. It was also felt that it would make the government more accountable and it will cater to the popular demand of regional representation. But the other side of the debate was that governments all over the world would find it difficult to govern capital cities in a federal nation. Conferring statehood on the capital city would lead to conflict between the central government and the state government at the capital. Intuitively speaking, elected government would assert its autonomy while the central government will also have a legitimate interest in having a strong hold over the capital.
The debate was finally settled with the passage of the 69th Constitutional Amendment in 1991.[2] Article 239AA and 239AB were added via this amendment. Delhi was declared to be the National Capital Territory of Delhi and was to be administrated by an administrator designated as the Lieutenant Governor (hereinafter, “LG”). NCT was also to have a directly elected legislative assembly (hereinafter, “LA”). The LA was vested with the power to legislate on the subjects contained in the state list and concurrent list, to the extent they were applicable to UTs, except for the matters pertaining to police, public order and land.
The Background
The experience with this amendment had been largely satisfying but the earlier apprehensions regarding the potential tussle between the Centre and the State government that could prop up on conferring state like features on the capital city, started playing out in practice when the Bhartiya Janta Party formed a government at the center and the Aam Aadmi Party won the Delhi legislative elections in 2013.
The LG started objecting[3] to various decisions of the LA which pertained to interalia, policy decisions, appointments, inquiries etc. pursuant to a complete break-down of the cordial relations between the assembly and the LG, the LA moved Delhi High Court for the settlement of the tussle. The court held that the LG was the administrative head of Delhi and that the LA’s contention that the LG was supposed to act on the aid and advice of the council of ministers did not have any substance. This judgment was reconsidered in Govt. of NCT of Delhi v Union of India (2018 verdict), when the LA went before the Supreme Court in appeal.[5] The Supreme Court held that the LG was an administrator of the NCT in a limited way and was bound to act upon the aid and advice of the Council of Ministers in the matters, for which the LA had the power to legislate upon.
The Present Controversy
While it appeared that the Supreme Court had settled the matter once and for all in the aforementioned case; the Government of National Capital Territory of Delhi (GNCTD) Bill[6] has been passed by both the houses of the Parliament on 24th March 2021 and gained the presidential assent on 28 March 2021 and this act has again muddled up the broad consensus around article 239AA. The GNCTD Amendment Act 2021 which amends the GNCTD Act 1991 is prima facie in violation of both the constitution of India (Article 239AA) and the dictum of the SC in the case of Govt. of NCT of Delhi v Union of India, 2018.To start off, section 21(2)(3) of the Amendment Act declares the expression “government” in any law which is passed by the LA, shall mean the LG.
India has a west ministerial form of government, wherein the governor and president reign but do not rule. In Shamsher Singh v. State of Punjab, the SC observed that the President and Governors were mere formal heads of the government and their position was akin to that of the king of England.[7] Further, in Ram Jawaya Kapoor v. State of Punjab, it was held that Council of Ministers had the real executive powers whereas the President and the Governor had mere nominal powers.[8] The underlying rationale of the SC was that the real powers ought to vest in the ones who have been directly elected by the people of India, instead of a nominated individual. The constitutional theme which mandates that the governor ought to act on the aid and advice of the council of ministers (Article 233) and the interpretation of the SC in the aforementioned cases furthered the democratic ideal of the government by the people and for the people. Thus, conflating a nominated individual with the “government” of Delhi, thereby bypassing the election mandate is a not only a violation of the intend and purport of the constitution.
It also amended section 24 which provided for the procedure to be followed by the LG while assenting to a bill or withholding the same, which has been passed by the LA. Initially the Central Government could exclusively legislate upon on matters concerning public order, police and land. But after the amendment the LG can withhold its assent and can refer the bill to the president to, even if it “incidentally covers any of the matters that fall outside the purview of the powers conferred on the LA” This will empower the LG in exercising their discretion in everything incidentally encroaching upon the powers of the parliament, because the adopted phrase has a very wide amplitude. This is bound to hamper the business of the LA and will reduce it to a mere vestigial organ.
The addition of this provision becomes legally untenable as the SC, while interpreting Article 239AA had unequivocally, held in its 2018 verdict that the proviso to the article empowered the LG to refer the bill to the president for their opinion whenever there was a difference of opinion between the LG and the LA. But “any matter” did not mean “every matter” and it was observed that such referral could only be made when all the attempts to reach a consensus had failed and the matter was that of vital national interest.
However, the insertion of this idea of the incidental encroachment is likely to open up a pandora’s box of cases, where the LG will refer the bills to the President, even when they incidentally cover the matters outside the purview of the powers of the LA.
The most blatant erosion of article 239AA and the powers of the LA is embodied in the alteration to section 44. As per the Amendment Act, the LA shall not make any rules to “enable itself to consider the matters of day-to-day administration of the capital or conduct inquiries in relation to any administrative decision.” It further retrospectively invalidates any such rules made by the LA for aforementioned purposes.
The proviso to this section also provides that the LA is mandated to take the prior opinion of the LG before “taking any executive action”. This proviso renders the elections and public mandate meaningless, as it enables an unelected individual to give his opinion over every action, that is to be taken by a popularly elected government. Further, it is in absolute contradiction to what the SC laid down in the NCT verdict,
“It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of the Parliament to treat Delhi Government as a representative form of government.”
A Far-fetched Thought
The statement of objects of the amendment mentions that it has been introduced to ensure the effective and time bound facilitation of the business of the NCT and to provide clarity on the matters to be referred to the LG. If further cites the SC’s verdict in Govt. of NCT of Delhi v Union of India and purportedly aims to effectuate the same.
However, the passage of this amendment is reflective of a misreading of the SC’s verdict. The 5 judges on the SC bench in fact, painstakingly explained how it was imperative to let the democratically elected government to have a final say in all the matters, so that they are able to give effect to the wishes of the citizens. The bench elaborately discussed the need to foster cordial relations and due consultation between the LG and LA to materialize the idea of co-operative federalism in practice.
Followed by the abrogation of article 370 by undermining the legislative assembly of the erstwhile state of Jammu and Kashmir; passage of Citizenship Amendment Act to disenfranchise and defenestrate Muslims; introduction of electoral bonds to induce massive opaqueness into the electoral system; passage of the central farmers legislations when agriculture is otherwise a state subject and many other such moves in the similar vein. Finally, we have now seen the 1001st cut being inflicted on the Constitution of India through the amendment bill. It is only a far-fetched thought to hope that we do not witness this slow death of the alive document, that we all revere so much.
[1] NDMC Amendment Bill, 2020 <https://www.prsindia.org/sites/default/files/bill_files/SCR_on_NDMC_amendment_Bill_2010.pdf>
[2] The 69th Constitutional Amendment Act <https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-sixty-ninth-amendment-act-1991#:~:text=%2D(1)%20As%20from%20the,under%20article%20239%20shall%20be>
[3]<https://www.indiatoday.in/india/story/supreme-court-judgment-arvind-kejriwal-delhi-lg-timeline-since-2014-1277380-2018-07-04>
[5] Govt. of NCT of Delhi v Union of India (2018) 8 SCC 501
[6] Government of National Capital Territory of Delhi (GNCTD) Bill, 2021
[7] Shamsher Singh v State of Punjab (1974) 2 SCC 831
[8] Ram Jawaya Kapoor v State of Punjab (1955) 2 SCR 225
Anchal Bhatheja is a third year B.A.LL.B. (Hons.) student at National Law School of India University, Bengaluru
Image Credits: dnaindia.com
Constitutional Law Society 
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