Relevance: GS-2: Indian Constitution Features, Amendments, Federal Structure, Devolution of Powers

Key Phrases: Articles 239AA and 239BB in the Constitution, 69th Amendment Act, Federal Equilibrium, Full Statehood

Why in News?

• Supreme Court issued a notice challenging the Constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, (GNCTD) which increased the powers of the Delhi Lieutenant Governor over the elected government.
• In February 2019, a two-judge bench of the Supreme Court had delivered a split verdict on the question of powers of the GNCTD and Union Government over services and referred the matter to a 3-judge bench.
• The Act in question gives sweeping powers to the Lieutenant Governor of Delhi by declaring him to be the "Government of Delhi".
• This Act was also questioned because it provides that the opinion of the LG "shall be obtained" on all such matters as may be specified by the LG, before taking any executive action on decisions of the Council of Ministers of the Delhi Government.

History of GNCTD Act:

• The GNCTD Act was enacted in 1992 to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital. The act outlines few important provisions such as:
• The powers of the Assembly
• The discretionary powers enjoyed by the L-G
• Duties of the Chief Minister with respect to the need to furnish information to the L-G.
• Under the Act, Delhi Legislative Assembly was given the power to regulate its own procedure, as well as the conduct of its business.
• This sought to realize a delicate balance reflecting Delhi’s unique constitutional position: neither full state nor a centrally governed Union Territory.
• Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act. The act introduced Articles 239AA and 239BB in the Constitution.
• Lastly, provisions of public order, police and land are not under the jurisdiction of the Delhi government. The Centre will maintain these provisions.

Government of NCT of Delhi v. Union of India Case 2018:

• The Supreme Court defined the limits of L-G’s discretionary powers. The important points of that judgement were:
  • L-G is bound by the aid and advice of the council of ministers except in subjects of land, public order and police.
  • Executive decisions do not need the concurrence of the Lieutenant General. Further, the court also held that the L-G has no powers to overrule the decisions of the elected government.
  • The difference of opinion has to be referred to the president under Article 239AA(4) provision.
  • The Lieutenant Governor cannot act mechanically and refer every decision to the president.
  • Only genuine cases of public interest can be referred to the President.
  • Before referring a bill to the President, the L-G has to consider the principles of collaborative federalism, the concept of constitutional governance, objectivity, etc.
  • Executive power rests with the council of ministers of NCT, Delhi. The union government has no overruling powers with respect to the executive powers.

Key provisions of the GNCTD Amendment Act 2021:

• Lt. Governor’s upper hand: The act makes it necessary for Delhi government to obtain the opinion of the lieutenant governor before taking any executive action and it forces the elected government to take the L-G’s advice before taking any action on any cabinet decision.
• Statement of objects & reasons of the Act: The Union government claims that the amendment Act seeks to give effect to the Supreme Court’s interpretation and that it “further defines” the responsibilities of the elected government and the Lt Governor in line with the Constitutional scheme
• Meaning of government: In its proposed amendments the Act mentions that the term “government” in any law made by the Legislative Assembly shall mean the L-G. It gives effect to “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”
• Making rules: it seeks to add a provision in the original GNCTD Act, 1991, barring the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.

Criticisms:

• Undermining elected Govt.: Equating the L-G with the government simply undermines the legitimacy of the elected government thereby disrespecting representative democracy.
• Disregarding the true spirit of Article 239AA: The NCT of Delhi (Amendment) Act restricts the Delhi government from inquiring into executive matters. This disregards the ideal of democracy conceived for the NCT of Delhi by Article 239AA of the Constitution.
• Distort the Federal Equilibrium: Providing excess powers to L-G can also distort the federal equilibrium. The center can use this Act as a precedent to curtail the powers of other states in the future.
• Disturbing Smooth Functioning: The Act has, in fact, planted several curbs on the functioning of the legislative assembly of Delhi as well as its council of ministers.
• Against Laws: The amendment contradicts the inherent right of the legislature to frame rules for the conduct of its own proceedings.
  • It also requires the government to obtain the LG’s opinion on decisions before executive action is taken, which runs counter to the constitutional bench’s specific interpretation on the need to inform but not to have to wait for a return of the LG’s opinion
• Against Full Statehood: The amendments will essentially take away the government’s autonomy and the dream for full statehood for the state, which each political party has promised the electorate at various times

Way Forward:

• The GNCTD Amendment Act should be reconsidered in the light of Justice D Y Chandrachud’s note in the 2018 verdict: “In a democratic form of government, the real power must subsist in the elected arms of the state”.
• A cautious discussion and deliberation should take place between the Centre and Delhi government on the ambiguous provision of the Act. This will help in the eradication of unconstitutional and undemocratic provisions.
• Apart from that, the government at the center and state must cooperate to make sure that L-G can discharge its constitutional function. At the same time, they need to avoid L-G doesn’t become a hindrance to development.

Sources: Economic Times  Live-Law

Mains Question:

Q. Recently govt. passed the GNCTD Amendment Act in light of this discuss the key provisions of the NCT Act passed in 1992. Also, critically analyze the GNCTD Amendment Act 2021 and also provide the way forward?