The Centre’s Bill seeking to amend the law relating to the running of the National Capital Territory of Delhi claims that it is aimed at giving effect to the interpretation given by the Supreme Court judgments on Delhi’s governance structure. The proposed changes are the very antithesis of what the Court has said.
- Recently, the central government introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 in the Lok Sabha to amend the Government of National Capital Territory of Delhi Act, 1991.
- It aims to “further define the responsibilities of the elected government and Lieutenant Governor (LG) in Delhi”.
Provisions of the Bill:
- “Government” to mean “Lieutenant Governor (LG)”: The expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor (LG).
- Widening of Discretionary Powers of LG: The Bill gives discretionary powers to the LG even in matters where the Legislative Assembly of Delhi is empowered to make laws.
- Necessarily Granted an Opportunity to LG: It seeks to ensure that the LG is “necessarily granted an opportunity” to give her/his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is implemented.
- Related to Administrative Decisions: The amendment also says that “Legislative Assembly shall not make any rule to enable itself to consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions”.
Need of the Amendment:
- For Structural Clarity: The Ministry of Home Affairs’ statement on “objects and reasons” of the Bill stated that Section 44 of the 1991 Act deals with conduct of business and there is no structural mechanism for effective time-bound implementation of the said section.
- Also, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing order thereon.
- Section 44 of the 1991 Act says that all executive actions of the LG, whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the LG.
What the supreme court told?
- The Bill, if it becomes law, will wholly undermine the Court’s efforts to strengthen the elected government vis-à-vis the appointed Lieutenant Governor.
- The Constitution Bench verdict of July 4, 2018, said: “The Lieutenant Governor has not been entrusted with any independent decision-making power.
- He has to either act on the ‘aid and advice’ of the Council of Ministers, or he is bound to implement the decision taken by the President on a reference being made by him.”
- The ‘aid and advice’ clause pertains only to matters on which the elected Assembly has powers under the State and Concurrent Lists, but with the exception of public order, police and land, and, wherever there are differences between the L-G and the elected government, the former should refer the question to the President.
- The Court was at pains to clarify that the power to refer “any matter” to the President did not mean that “every matter” should be referred thus. The guiding principle was that the elected government should not be undermined by the unelected administrator. The Bill introduced in the Lok Sabha does violence to this interpretation.
- The Bill seeks to declare that in the context of legislation passed by the Delhi Assembly, all references to the ‘government’ would mean the “Lieutenant Governor”. Indeed, Delhi is a Union Territory; but it is somewhat incongruous for a territory with an elected House to be declared the sole domain of the L-G.
- The apex court had rightly concluded that the scheme set out in the Constitution and the Government of National Capital Territory of Delhi Act, 1991, envisages a collaborative structure that can be worked only through constitutional trust.
- The proviso to Article 239AA, which empowers the L-G to refer a difference of opinion with the Council of Ministers to the President, does not mean that the administrator is given an opportunity to come up with a different opinion on every decision made by the Ministry.
- Yet, it is precisely what the Bill proposes to do. And it is quite incongruous that instead of Parliament identifying the matters on which the L-G’s opinion should be sought, the Bill proposes that the L-G himself would specify such matters.
- The clause that declares void any rule that empowers the Assembly or its Committees to discuss any matter of day-to-day administration or conduct enquiries amounts to a rollback of representative government.
The ‘Union Territory’ concept is one of the many ways in which India regulates relations between the Centre and its units. It should not be used to subvert the basis of electoral democracy.