A Look at the Amendments and the Central Government’s Claims

On March 15, the central government introduced The Government of National Capital Territory of Delhi (Amendment ) Bill, 2021, in the Lok Sabha. It is scheduled to be taken up in the Rajya Sabha in the coming week. The bill seeks to amend the GNCTD Act 1991, in light of the July 4, 2018, five-judge constitution bench verdict of the Supreme Court, which, for the first time had interpreted the provisions of the Article 239AA and article 239AB in the 69th amendment of the Constitution, and defined the powers of the elected government and the lieutenant governor of Delhi in the administration and governance of the capital. The Centre says that the GNCTD Bill 2021 will “promote harmonious relations between the legislature and the executive and further define the responsibilities of the elected Government and the Lieutenant Governor, in line with the constitutional scheme of governance of the National Capital Territory of Delhi, as interpreted by the Hon’ble Supreme Court”. Delhi chief minister Arvind Kejriwal has hit back by saying that this is a betrayal of the people of Delhi, the stunning mandate for the Aam Aadmi Party in 2015 and 2020, as it virtually disenfranchises the voter, and questioned the purpose of having elections in Delhi at all.

The 69th Amendment Act to the Constitution in 1991 paved the way for the capital to become a union territory with a legislative assembly through Articles 239AA and 239AB. Delhi is governed by Articles 239AA and Articles 239 AB, the GNCTD Act 1991 and the Transaction of Business Rules 1993. Delhi witnessed fierce confrontations between the elected chief minister Arvind Kejriwal and the-then lieutenant governor Najeeb Jung after the former assumed office both during the first tenure of 49 days and much of the first three years from 2015, when AAP was elected again till 2018 when the top court gave its verdict. At the heart of the conflict is the sovereignty of the elected government, the council of ministers to take independent decisions and the legislative assembly of Delhi.

In its “statement of objects and reasons”, the Centre says that the GNCTD Amendment Bill 2021 seeks to “give effect to the interpretation made by the Hon’ble Supreme Court” and seeks to clarify the expression ‘government’ which, in the context of legislation passed by the legislative assembly of Delhi shall mean the ‘lieutenant governor’ of NCT, Delhi. The Centre clearly states that this is consistent with the status of Delhi as a union territory to address the ‘ambiguities’ in the interpretation of legislative provisions. Further empowering the office of the lieutenant governor, the Centre spells out that it seeks to ensure that the lieutenant governor is “necessarily granted an opportunity to exercise the power entrusted to him under proviso (4) of Article 299AA of the Constitution, in a select category of cases and also to make rules in matters which incidentally encroach upon matters falling outside the preview of the Legislative Assembly…”

One of the crucial amendments is section 21 of the Government of National Capital Territory of Delhi Act, 1991, where after subsection (2), a subsection, “the expression of ‘Government’ referred to in any law to be made by the legislative assembly shall mean Lieutenant Governor”, has been introduced. Seeking to define and draw boundaries on the powers of the legislative assembly of Delhi, the GNCTD (Amendment) Bill, 2021, an amendment in section 33 of the principal Act has been brought in which states, “provided that the Legislative Assembly shall not make any rule to enable itself or its Committees to consider matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions and any rule made in contravention of this proviso, before the commencement of the GNCTD (Amendment ) Act, 2021 shall be void”. Another crucial amendment is in section 44 of the GNCTD Act 1991- a provision, “provided that before taking any executive action in pursuance of the decision of the Council of Minister, to exercise powers of the Government, State Government, Appropriate Government, Lieutenant Governor, Administrator or Chief Commissioner”, the “opinion of the Lieutenant Governor”, “shall be obtained on all such matters as may be specified, by a general or specific order by the Lieutenant Governor”. In layman’s terms, this simply means that now the elected government has to seek the opinion of the lieutenant governor before taking any executive action based on decisions taken by the council of ministers, minister or chief minister, implying files will have to be sent to the L-G for the latter’s opinion as the latter deems fit.

A taste of the tussles

The-then lieutenant governor of Delhi, Najeeb Jung, and chief minister Arvind Kejriwal had perhaps one of the most intense and bitter power tussles ever witnessed in the country, which lasted from 2013 till 2016, when Jung suddenly resigned from office. While the former interpreted ‘government’ to be the lieutenant governor and directed that all files be routed through him, the latter’s interpretation was that the elected government has the power to take decisions on all matters, and therefore all files need not be sent to the L-G office for approval. Jung and Kejriwal clashed over every important issue with the former terming the latter’s many decisions to be ‘void ab initio’. Raging from a turf war over the capital’s anti-corruption bureau, to the appointment of bureaucrats, to clearing files on policy matters, to appointment of the Shunglu Committee to probe every decision taken by the elected government, raids by the CBI on the chief minister’s office, to alleged targeting of then chief secretary Rajendra Kumar and alleged assault on the-then chief secretary Anshu Prakash at the chief minister’s residence: the two locked horns on every issue. Even after Anil Baijal replaced Najeeb Jung, and the 2018 SC verdict which said that except for issues relating to land, police and public order, the elected government has the power and freedom to take decisions independent of the L-G’s opinion while keeping the latter informed, the tussle continued, even though much subdued. Delhi CM Arvind Kejriwal, along with his deputy Manish Sisodia, and cabinet ministers Gopal Rai and Satyendar Jain had staged an indefinite sit in at the office of lieutenant governor Anil Baijal, demanding the clearance of files related to installation of CCTV cameras across the city and doorstep delivery of ration among other things.

What did the Supreme Court say?

The constitution bench of the Supreme Court headed by the-then Chief Justice of India Dipak Misra with AK Sikri and AM Khanwilkar, delivering its verdict said that while interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The top court further said that ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet, the Cabinet owes a duty towards the legislature for every action taken in any of the ministries and every individual minister is responsible for every act of the ministry, and this principle of collective responsibility is of immense significance in the context of ‘aid and advice’, if a well- deliberated decision of the council of ministers is not given effect due to an attitude to differ on part of the lieutenant governor, then the concept of collective responsibility would stand negated.

The Supreme Court also pointed out that the Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the state governments. Importantly, it said that as opposed to centralism, a balanced federal structure mandates 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. Clearly delineating the powers between the elected government and the office of the lieutenant governor, the top court said, “with the insertion of Article 239AA by virtue of the 69th Amendment the parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling with the State List and Concurrent List, barring those exempted, and a mandate upon the lieutenant governor to act on the ‘aid and advice’ of the Council of Ministers except when he decides to refer the matter to the President for final decision”.

At the heart of the conflict between the elected government and the lieutenant governor in Delhi was the question, whether or not the elected government had the sovereignty to take decisions independent of the L-G’s opinion. On this, the top court has clearly said that the lieutenant governor is “bound by the aid and advice of the Council of Ministers” and that “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 top court unambiguously states that while the lieutenant governor, being the administrative head, shall be kept informed with respect to all decisions taken by the council of ministers, the concurrence of the L-G is not required.

On the question of a difference of opinion between the elected government and the lieutenant governor, the latter can refer the matter to the President. However, even here, the court has a word of caution. The SC has said, the words ‘any matter’ employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean ‘every matter’, and that the power of the L-G under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the L-G. The constitution bench of the Supreme Court further said that the difference of opinion between the lieutenant governor and the council of ministers should have a sound rationale and there should not be an exposition of the phenomena of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.

On the powers of the legislative assembly, which now is set to change once the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, is passed by Parliament, the Supreme Court said that the interpretative dissection of Article 239 AA (3) (a) reveals that the Parliament has the power to make laws for the NCT of Delhi with respect to any matters enumerated in the State List and Concurrent List, and at the same time the legislative assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all but three excluded subjects in the State list

What do experts say?

On the amendment that has been brought in to define ‘government’ as ‘lieutenant governor’, for all the laws that will be passed by the assembly, former general secretary of the Lok Sabha PDT Achary says that there is no need for it and it does not make any sense. “As I look at it, it is a very strange kind of amendment because we have a system, the system of parliamentary democracy. In a parliamentary system, there is an executive, there is a legislature, and the executive means the elected government, and the government will be responsible to the legislature. When the Parliament passes a law, or the legislature passes a law, the executive is to implement it because that executive is responsible to the legislature. And if the legislature takes a decision on any issue, it is required to be carried out by the executive because the executive is responsible to the legislature. Now, here, you are introducing something which is totally extraneous to this,” he says.

Achary argues, “You say the ‘government’ means the ‘lieutenant governor’. Now, is the lieutenant governor part of the assembly? No, he is not a part of the legislature. Is he responsible to the legislature? No. Then how does it work and what do they mean by this?”

Further illustrating the point, the former Lok Sabha general secretary says, “Suppose the assembly passes a law, there are directions to the government that the government shall do this or the government shall not like that; it is the government that has to enforce that law. If the government is the lieutenant governor, the lieutenant governor is not part of the assembly, the lieutenant governor is not responsible to the legislature, then he can say that he is not duty-bound to implement it.”

“The General Clauses Act, a nineteenth-century legislation, contains definitions; there the central government means President. By that analogy, you can say that the government means the lieutenant governor, but that is not what it is here, as here it says in all the laws that are made by the legislature, ‘government’ means ‘lieutenant governor’. There is no need for that; it does not make any sense,” says Achary.

On the amendment sought to be introduced regarding the powers of the assembly, which, once passed, would imply that the assembly cannot make a rule which would enable it to inquire into or investigate the administrative decisions, Achary’s reading is even more scathing. “The assembly has certain very fundamental rights and duties. The assembly is a legislature whose main function is to scrutinise the decisions of the government. The entire exercise is the parliamentary oversight which is the essence of a parliamentary form of system of governance. That is why the assembly or Parliament forms a committee to look into specific areas. Now if this amendment is carried out, what will happen is most of the rules which exist in the assembly, which are there in the Rules of Procedure, will become void. Your committees will become void. They will disappear…can’t exist. Your public accounts committee, your undertakings committees, so many other committees which look into the functioning of the government, all these committees will disappear,” he says. Stating that this is a very fundamental function of any legislature and cannot be taken away, Achary says, “Parliament cannot make a law and take away the function of legislature.”

On the amendment that makes it mandatory for the government to seek the opinion of the lieutenant governor on those issues as decided by the L-G by special order or general order, the former Lok Sabha general secretary feels that it will render the elected government helpless. He says, “Now what will happen is that the government takes a decision on an issue, it goes to the lieutenant governor and he does not give an opinion, he just keeps quiet over it. What will you do? This amendment does not give any time frame, this actually goes against Article 239 AA (4). Article 239 AA (4) said that the lieutenant governor shall be aided and advised by the council of ministers, implying that the L-G cannot act independently, which incidentally was also upheld by the 2018 verdict of the SC bench. You are bringing an amendment which basically is against that, it nullifies that, it goes against the constitutional provision and the interpretation given by a constitution bench of the Supreme Court on that. Now the government is no longer free, after taking a decision they have to take an opinion of the lieutenant governor, he may give an opinion or he may not give an opinion. This amendment is placing the government in such a helpless situation; this amendment completely hobbles this government, makes it non-functional.”

He argues that Parliament cannot make a law to nullify the decision of the Supreme Court without changing the basis of the Supreme Court’s decision. “You have not changed the basis of the SC decision. You have said ‘in pursuance’ of the Supreme Court decision…the statement of purpose says clearly that they are doing this to implement the Supreme Court’s decision, that means they are not changing the basis of the Supreme court decision and when you are not changing the basis of the Supreme Court’s decision yet you are nullifying the decision of the Supreme Court…you can’t do that, that means this is invalid, this amendment is invalid.”

PDT Achary quotes clause 7 of Article 239 (AA) that says Parliament can make a law to give effect to the provisions contained in this Article and also to supplement it and take decisions on incidental matters to argue that Parliament can make a law on incidental matters. It is a supplemental law, the law will be made by Parliament to supplement the provisions of Article 239 (AA), so the GNCTD Act is not an independent or standalone law; it has been made by Parliament to supplement Article 239 (AA). “Article 239 (AA) says that there shall be a government which will be responsible to the legislature and the legislature has the power to legislate on certain things and legislature cannot legislate on certain things and then the interpretation is that the elected government can take decisions without the concurrence of the lieutenant governor. Now, this law that Parliament can make is only to supplement these provisions, not to neutralise it. You cannot make a law to neutralise these provisions. This is a law which neutralises this Article, the provisions of Article 239 (AA),” Achary says.