Delhi Lieutenant Governor Anil Baijal shares a light moment with Delhi Chief Minister Arvind Kejriwal during the swearing-in ceremony of Chief Justice of Delhi High Court, at Raj Niwas in New Delhi on August 9, 2018 (PTI Photo/Ravi Choudhary)
The Lok Sabha on March 22 passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 which seeks to give primacy to Delhi’s Lieutenant Governor (L-G) over the elected government. The development has set up the stage for yet another confrontation between the Centre and the Aam Aadmi Party (AAP) government in Delhi.
While the Congress-led opposition in Lok Sabha termed the Bill ‘unconstitutional’, chief minister Arvind Kejriwal said that the Bill was an ‘insult’ to the people of Delhi as it takes away powers from those (AAP) who were voted and gives powers to those who were defeated (BJP).
The issue had been a bone of contention between the Arvind Kejriwal government and the Centre until July 2018 when a Constitution Bench of Supreme Court gave an order in favour of the elected government.
What is the Bill about?
In simpler terms, the Bill, introduced in the Lok Sabha on March 15, seeks to enhance powers of the L-G of Delhi over the elected government. It has proposed to amend the Government of NCT of Delhi (NCTD) Act, 1991, to “supplement provisions of the Constitution relating to the Legislative Assembly and a Council of Ministers for the National Capital Territory of Delhi.”
It seeks to amend four sections of the 1991 law, and defines the term “Government,”
“The expression “Government” referred to in any law to be made by the Legislative Assembly (of Delhi) shall mean the Lieutenant Governor”, it reads.
Thus as defined in the Bill, the ‘Government’ in any law passed by the legislative assembly means the L-G of Delhi and not the elected government.
The Bill also seeks to prohibit the legislative assembly from making rules for its committees on day-to-day administration or to conduct inquiries into administrative decisions. The Bill also proposes that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or a minister in the government.
What is the 1991 Act?
Delhi is not a full state. It became a Union Territory with an elected legislative assembly by virtue of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the constitution in 1991. The Government of NCT of Delhi (NCTD) Act, 1991 or the GNCTD Act was passed simultaneously to supplement the constitutional provisions with regard to the legislative assembly, the L-G, the chief minister, and the council of ministers in the cabinet.
What did the Supreme Court say in 2018?
Critics of the move have said that it is surprising that the amendments are being made in the Act when Supreme Court had in 2018 settled the constitutional issues with regard to the relationship between the Delhi government and the L-G in matters of governance. In its verdict on July 4, 2018 verdict, the five-judge Bench had held that the L-G’s concurrence is not required in NCT of Delhi on issues other than police, public order, and land. The bench of then Chief Justice of India Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud, and Ashok Bhushan also said that the decisions of the council of ministers will have to be communicated to the L-G.
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“It has to be clearly stated that requiring the 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,” the court had ruled.
The court had said that the L-G was bound by the aid and advice of the ministers in the Delhi government.
What will change in Delhi that has left Arvind Kejriwal worried?
The Supreme Court judgment of 2018 had come as a relief for the Arvind Kejriwal government that had been indulged in a constant tussle with the L-G and the Centre over governance and policy decisions. Since then, the Arvind Kejriwal government had stopped sending filed on executive orders to the L-G before rolling them out. The government has been keeping the L-G in the loop on all administrative developments, though. But as per the proposed amendment, the elected government will be bound to seek L-G’s advice before taking any executive action or even a cabinet decision. Many within the government and the party have said that it was because of the judgment that the Arvind Kejriwal dispensation could roll out its populist policy decisions like free power up to 200 unit consumption, free bus rides for women, etc., The amendments, once cleared, will mean the government has to implement its policies through L-G.
What does the Centre say?
Introducing the Bill for consideration and passing, Union Minister of State for Home G Kishan Reddy said the amendments are aimed at removing technical ambiguities related to everyday administration.
“This will increase administrative efficiency of Delhi and will ensure the better relationship between the executive and the legislator. This is a technical bill. This is not a Bill related to politics. There are some technical ambiguities related to day-to-day administration. It is the responsibility of Parliament to remove these,” he said.
Yamini Aiyar and Partha Mukhopadhyay of the Centre for Policy Research said in an article published in Hindustan Times on March 21 that this Bill, despite its stated objective, represents yet another step toward centralising India’s federal polity.
“These provisions contradict the 2018 judgment, which unambiguously clarifies that the council of ministers with the chief minister at its helm is the executive head of the government of Delhi. By conflating the government of Delhi with L-G, the bill blurs the distinction between the elected government and L-G,” the article read.
Faizan Mustafa, vice-chancellor NALSAR University of Law, Hyderabad said in an article published in Indian Express that if passed in its current form, the Bill will strip the elected government of almost all its powers and will sow the seeds of absolutism
“This ill-timed move not only negates cooperative federalism but also upturns the fundamental principles laid down by the five-judge bench judgment of the Supreme Court in 2018. While the court was hopeful of a “constitutional renaissance” in the country, the Bill if passed in the current form would sow the seeds of absolutism,” Mustafa said suggesting that the Bill should be referred to a select committee and not passed in haste