SCRUTINIZING THE CONSTITUTIONALITY OF THE GOVERNMENT OF NCT OF DELHI (AMENDMENT) ACT, 2021

INTRODUCTION

The Government of NCT of Delhi (Amendment) Act, 2021 (hereinafter referred to as GNCT Act) came into effect from 27th April 2021. It was introduced in Lok Sabha on the 15th of March and was passed on March 22, 2021, by Lok Sabha and on March 24, 2021, by Rajya Sabha.

This Act amends the previous Government of National Capital Territory of Delhi Act, 1991 and establishes the supremacy of Lieutenant Governor (hereinafter referred to as LG) over the elected government i.e., Legislative Assembly. The purpose of this Act is to clearly describe the roles and responsibilities of the LG and the elected government of Delhi, removing all the technical ambiguities and confusion.

It has been widely criticized for being non-democratic as it curtails the power of the duly elected government and makes the administration less efficient.

Background

The GNCT of Delhi Act, 1991 gave Delhi a special status, and even though it’s a Union Territory, it has a Legislative Assembly and Council of Ministers. The powers of the elected government and LG overlapped and thus, created a lot of ambiguity. The Apex Court advised to follow the spirit of cooperative federalism and believe in the supremacy of the represented government because of its constitutional primacy. As a result, the State Government stopped notifying LG of the executive decisions on time, and therefore, the need for a new GNCT Act, 2021 manifested.[1]

Key Amendments

  • Section 21, 24, 33, and 44 has been amended.
  • The term “Government” will imply LG in all those circumstances where any law is to be made by the Legislative Assembly.
  • This Act prohibits the Legislative Assembly from making any administrative decisions or its inquiry. It is a retrospective Act and thus, makes all the previous enactments in such regard null and void.[2]
  • Taking LG’s opinion prior to any executive decision is necessary under Section 44 of the GNCT Act, 2021 and the executive actions must be taken in his name.
  • This Act grants discretionary powers to the LG to reserve a bill passed by the Legislative Assembly under certain specified circumstances.

Inconsistency with Supreme Court’s 2018 Judgement

In the landmark judgment of Government of NCT of Delhi v Union of India & Another[3], the Supreme Court held that the LG cannot make decisions on his own and has to abide by the aid and advice given by the Chief Minister of Delhi and the Council of Ministers on all matters except those relating to police, public order, and land.

Further, the Court expressed that the intention behind the Constitutional (69th Amendment) Act, 1991 was to promote the democratic setup and representative form of government. This way, the majority would be able to give their opinions in lawmaking and policy formulation in the NCT of Delhi subjected to limitations mentioned in the Constitution. The Court held that Article 239AA[4] should be interpreted in its truest sense which supports the principles of democracy and cooperative federalism. The basic structure of the Constitution should be kept in mind while dealing with this provision.

The present GNCT Act, 2021 provides supremacy to the LG, who is a Union Appointee over the elected government. This provision defeats the principles of cooperative federalism and democracy and is in clear violation of the said Judgement.

It is an established rule that a new validation rule can be passed to render a Judgement ineffective by altering the basis of the judgement on a fundamental level. Judiciary’s power cannot be trenched by the legislature and thus, the new law passed should eliminate the defect or infirmity raised by the Court.[5] GNCT Act, 2021 claims that it gives effect to the 2018 Judgement but a deep analysis of the subject suggests that the Act does not alter the basis of the judgement and supersedes it without lawful explanation. The true intent of the Judgement is being defeated by the Act.

The Act is inconsistent with Judgement as Judgement held supremacy of the elected government over LG in the spirit of democracy and cooperative federalism while the Act does its opposite and grants LG the ultimate power.

Violates Article 239AA of the Constitution

The objective behind the enactment of the GNCT Act, 1991 was to give effect to Article 239AA. It is a supplemental law and is required to deal with incidental matters and cannot go beyond the provisions of Article 239AA.[6] In the case of Supreme Court Employees’ Welfare Association v. UOI[7], it has been clearly stated that the legislative proposal cannot be incidental or consequential if its effect is not in accordance with the parent act and the constitution.

Article 239AA(6) provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly. One of the fundamental principles of the parliamentary form of government is executive responsibility. Decisions made by the executive are subject to the scrutiny of the Legislature. The present GNCT Act, 2021 takes away this power of the Legislative Assembly to inquire into administration decisions and thus, violates the principle of executive responsibility enumerated in Article 239AA(6).

Clause (4) of the said Article provides that the LG is bound by the aid and advice of the Council of Ministers except in some matters and in the 2018 Judgement the Apex Court held that state government has the power to take decisions without the concurrence of the LG. Now, the present GNCT Act, 2021 goes against this provision by making LG’s opinion a precondition for any executive action. Therefore, LG is neither bound by the decision of the Legislature Assembly nor respond to it. This goes against the principle of executive responsibility and the spirit of Article 239AA(4).

Article 239 AA(7)(a) grants the President the power to make laws that either give effect to or are supplementary to this Article. The GNCT Act, 2019 instead of giving effect to this provision upends it and thus, violates Article 239 AA(7)(a).

Article 239AB provides for the Presidential Rule in Delhi after receiving a report from the LG. After the GNCT Act, 2021 the term “government” implies LG which creates confusion and ambiguity regarding this provision. It is impossible to make a report against oneself. The Constitution recognizes the elected government as the true government and LG only as a constitutional head. This Act is not in accordance with this provision and goes against it.

Violates Basic Structure

Parliament cannot use its power to amend the basic structure or the fundamental features of the Constitution. It was held in the landmark case of Kesavananda Bharati v. State of Kerala[8]. The GNCT Act, 2021 goes against fundamental principles like cooperative federalism and separation of powers and therefore, it is unconstitutional.

Conclusion

It has been claimed that the GNCT Act, 2021 does not alter the constitutional or legal duties and responsibilities of the elected government but rather aims to define these responsibilities for the peaceful and amicable relationship between the legislature and the executed. But the harsh reality is it is unconstitutional. Though it aims to give effect to the 2018 judgment, it actually negates it. It violates Article 239AA of the Constitution and also defies the Basic Structure of the Constitution. It goes against the principles of federalism and separation of power. Thus, it is against the letter and spirit of the constitution and therefore, unconstitutional.

Author(s) Name: Muskan Khandelwal (Symbiosis Law School, Pune)

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[1] BYJU’s, https://byjus.com/free-ias-prep/government-of-nct-of-delhi-amendment-act-2021/ (last vistited May 30, 2021).

[2] PRS Legislative Research, https://prsindia.org/billtrack/the-government-of-national-capital-territory-of-delhi-amendment-bill-2021 (last visited June 1, 2021).

[3] Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501.

[4] India Const. art. 239AA.

[5] People’s Union for Civil Liberties v. Union of India, AIR 2003 SC 2363.

[6] P.D.T. Achary, Centre’s Delhi Amendment Bill is at Odds with Supreme Court’s Ruling and the Constitution, The Wire Law Analysis (May 31, 2021, 9:00 PM), https://thewire.in/law/delhi-amendment-bill-centre-lieutenant-governor-supreme-court.

[7] Supreme Court Employees’ Welfare Association v. Union of India, AIR 1990 SC 334.

[8] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

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