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Atul Dubey

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“Delhi as the National Capital belongs to the nation as a whole.”

Balakrishnan Committee Report 1987

The Government of National Capital Territory of Delhi (Amendment) Act, 2021 was enacted by the Government of India on 28th March 2021. This Act has amended the Government of National Capital Territory of Delhi Act, 1991. According to this Act, the elected government will have to seek out the view of the Lieutenant Governor (LG) for any Executive action.

69th Constitutional Amendment Act, 1992: Background

This Amendment added two Articles 239AA and 239AB under Part VIII of the Constitution giving Delhi a unique and special status having a Legislative Assembly with an elected govt. alongside a Union Territory.

Article 239AA states that the Union Territory of Delhi be called the National Capital Territory of Delhi and its administrator shall be known as LG. Article 239AA (2) (a) provides for the Legislative Assembly chosen by direct election. The total number of seats in the Legislative Assembly and the reservation for seats for SCs shall be decided by law made by Parliament. The Legislative Assembly as per art 239AA(3) (b) shall have the power to make laws on subjects under the State list & Concurrent list except on these topics- land, public order and police.

Article 239AA (4) provides for a Council of Ministers for Delhi comprising of not more than 10% of the total number of members in the Assembly to aid and advice the LG in the exercise of his function in relation to the matters in which the Legislative Assembly has the power to make laws. The proviso added to the clause states that in case of any difference of opinion between the LG and the Council of Ministers, the LG shall refer the matter to the President for decision and act according to the decision given by the President. The Chief Minister of Delhi is appointed by the President and the Council of Ministers is appointed by the President on the advice of the Chief Minister.

Art 239AA (6) makes the Council of Ministers collectively responsible to the Legislative Assembly.

Article 239AB states that the President, on receipt of an order from the LG or otherwise may by order suspend the operation of any part of Article 239AA or entire provision or any of the provision of any law made accordingly on two grounds:

  1. a situation has arisen that the administration cannot be carried out in accordance with art 239AA; or
  2. for the proper administration of the National Capital Territory

This provision is similar to Article 356 i.e. President’s Rule.

Enactment of Government of National Capital Territory of Delhi (GNCTD) Act

The GNCTD Act was enacted in 1991 wherein the purpose was to supplement articles of the Constitution which are related to the Legislative Assembly and a Council of Ministers for the National Capital Territory of Delhi. It permitted the process of an elected government in Delhi.

Objectives of the 2021 Act

a. Define the obligations of the chosen government and the LG.

b. Make an amicable connection between the Legislature and the Executive.

c. To guarantee better administration in the NCT of Delhi.

Highlights of the 2021 Amendment Act

  • Provisions of the GNCT of Delhi (Amendment) Act 2021:
  • This Act has amended Sections 21, 24, 33, and 44 of the 1991 Act.
  • States that the “government” in the National Capital Territory of Delhi means the Lieutenant Governor of Delhi.
  • It gives discretionary powers to the LG even in the issues where the Legislative Assembly of Delhi is empowered to make laws.
  • It seeks to guarantee that the LG is “necessarily granted an opportunity” to give her or his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is applied.
  • It restricts the Assembly or its Committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in connection to administrative decisions.

Issues Involved and why GNCTD Amendment Act 2021 is criticized

For many years, there was friction between the Chief Minister and the LG related to sharing of power. In such a situation of a difference between the LG and the Council of Ministers on any matter, the matter was to be referred to the President by the LG for his decision and pending such a decision the LG was authorized to take any action on the matter as he considered right. The latest amendment will greatly lessen the productivity and timeliness of the Delhi government by making it authoritative for it to hold consultations with the LG even when a condition demands an urgent endeavor. Meaningfully, the LG is not obliged to give his opinion to the State government within a time frame. Criticizers contend that the LG could politically exploit these unrestrained powers to hamper the government’s administrative work and thus turn the political tides against the incumbent if he so desires. The amendment broadened the scope of the phrase “government” under the Act, equating the LG (an Administrator under Art 239) with that of an elected govt. under the democratic set-up.

Judgment of the Supreme Court regarding the interpretation of art 239AA:

In the Government of NCT of Delhi v. Union of India, the SC held that:

  • The government was not under a duty to pursue the concurrence of the LG on its decisions and
  • That any differences between them should be determined keeping in view the constitutional primacy of representative government and cooperative federalism.
  • Fundamentally, the SC judgment made it tremendously challenging for the L-G to refer such matters to the President.

The Court also relied on the Balakrishnan Committee Report 1987 which was established to recommend the status to be conferred on Delhi and the Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. The Committee further noted in its recommendation that:

“…….After the most careful consideration of all the arguments and on an objective appraisal, we are fully convinced that most of the arguments against making Delhi a State of the Union are very substantial, sound and valid and deserve acceptance. The important argument from the constitutional angle is based on the federal type of our Constitution under which there is a constitutional division of powers and functions between the Union and the State. If Delhi becomes a full-fledged State, there will be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State List, Parliament will have no power on jurisdiction to make any law except in the special and emergency situations provided for under the Constitution and to that extent the Union Executive cannot exercise executive powers or functions………..The constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the National Capital as well as to the nation itself.”

Conclusion

From the above explanation, it is clear that the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, increases the powers of the LG, who appears for the Centre, in correspondence to the national capital’s elected government. Thus he raised certain questions as What transpired the people of Delhi? What materialized the Chief Minister? Why were the Elections held?

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Meenakshi Choubey is working as an Intern at Jurisedge and has completed her LLM from Kirit P Mehta School of Law, NMIMS, Mumbai.

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