The passage of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 (GNCT Bill) sets the stage for a new cycle of confrontation between the Centre and the Delhi government.
The issue, which was at the heart of the ruling governments frequent run-ins with the Centre during much of its first term, was taken up by a Constitution Bench of the Supreme Court, which tilted the scales in favour of the elected government through its July 4, 2018 verdict.
Background: Special Status for New Delhi
- Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
- It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
- That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
- As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
- For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
The Centre-State Dispute
- Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991.
- Since 1991, Delhi had been made a UT with an assembly with “limited legislative powers”.
- Cordial relations have prevailed between the Central and Delhi governments since 1996 and all differences have been resolved through discussions – with a few exceptions.
Lt. Governor at the Centrestage
- The Article 239AA while conferring on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police and public order – contained one sore point.
- It said that in case of a difference between the L-G and the council of ministers, the matter shall be referred to the president by the LG for his decision and pending such decision the LG can take any action on the matter as he thinks fit.
- It is this issue that the constitution bench of the Supreme Court resolved in 2018, when it said that the government does not have to seek the concurrence of the L-G on its decisions.
- Any differences between them should be resolved to keep in view the constitutional primacy of representative government and co-operative federalism.
It is after this judgement, the Centre brought up this Bill.
NCT of Delhi (Amendment) Bill, 2021
- Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
- This, essentially, gives effect to the former L-G 2015 assertion that “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”.
- The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.
What was the 2018 Supreme Court Verdict?
- In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
- It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
- The L-G was bound by the aid and advice if the council of ministers, it had said.
- The Bench of then CJI status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
- It had also pointed out that the elected government must keep in mind that Delhi is not a state.
Impact of the Judgement
- Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision.
- It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision.
- But the amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.
- The Bill seeks to bar 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.
Is the L-G left with no discretionary power?
- The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA (4).
- The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the SC verdict to keep the L-G in the dark about its decisions.
- But the SC had also categorically pointed out that the L-G should not act in a mechanical manner without due application of mind so as to refer every decision of the CM to the President.
Issues with the Amendment bill
While the Centre may be well within its right to bring the amendment, the move would not be above judicial scrutiny.
(1) Constitutional morality
- The point is that India is a quasi federal constitution. The Centre does have powers to create states and alter their boundaries.
- To use legislative power like this, just because the Centre can, also raises questions of constitutional governance and constitutional morality.
- A city of two crore people can’t necessarily be deprived of statehood or be given a rather watered down version of statehood.
- It is alleged that the Centre wants to govern Delhi through backdoor as people chose not to elect them in three consecutive elections.
- The fact that the Delhi government draws its authority from Article 239 of the Constitution has been a subject of much controversy.
- There are only three reserve subjects, land, law & order and police. The only power the LG has [on non-reserve subjects] is to refer the decisions to the President.
- The government’s bill goes against the judgment of the constitutional bench and says that every executive decision of the Delhi government has to be ratified by the LG.
- The Parliament does not have the power to change the constitutional mandate given to the elected government of Delhi.
(3) Sparking another power tussle
- From 2015 to 2018, the government was engaged in a constant battle with the Centre over policy decisions and the powers of the L-G with the elected government.
- The SC judgment gave the Delhi govt a freer hand in terms of policy decisions.
- The government insiders have maintained that it was because of the judgment that the government was able to clear policy decisions like giving free power to those using under 200 units, free bus rides for women.
- The amendments will have far-reaching implications — beyond just the tussle between any political parties.
What is Central Government’s argument?
- The centre claims that there is nothing unconstitutional in the law and that it merely seeks to clear the ambiguities that existed in Article 239AA.
- The complex power structure of Delhi where jurisdiction over different subjects is split between the central and the Delhi government is executed through the provisions of Article 239AA, the GNCTD Act 1991 and TBR 1993.
- The Centre has also asserted that the amended GNCTD Act was necessary for proper implementation of the Supreme Court’s 2018 Constitution Bench judgment.
Delhi’s governance needs a new re-imagination. Learning from international examples, and conceptualizing a new structure, can be a way forward.
Delhi cannot be unitary
- What distinguishes Delhi from other federal districts is sheer size. Its population would subsume the populations of the above-mentioned cities.
- Its closest peer is Mexico City. In a significant development, Mexico City was upgraded from federal district to the country’s 32nd state in 2016.
- This was driven by the desire to provide more responsive government for residents.
Decentralisation of decision-making is important
- There are alternative ways in which both the central government as well as state authorities can partake jointly in the management of the city.
- This might be achieved by a two-tier metropolitan authority.
Control over police
- Control over policing has been a major point of contention in Delhi.
- With the lone exception of Abuja, in other federal districts, the local governments have jurisdiction over at least some aspects of policing.
- The apex court should intervene now and advantage of the current controversy to permanently settle the jurisdiction. India will only prosper if all of its states do as well.
- The solid foundations of federalism and democracy on which our country has thrived will begin to crumble if there is strife between the Centre and the states.