The Central government today tabled the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 which redefines “Government” as the “Lieutenant Governor” for Delhi in certain respects and which could effectively limit the powers of the Legislative assembly in relation to administrative functions.
The bill makes amendments to the Government of National Capital Territory of Delhi Act, 1991 (Act).
The Centre has stated that this amendment has been brought to give effect to the “interpretation made by Hon’ble Supreme Court in Government of NCT of Delhi v. Union of India.“
The statement of objects of the bill says that it seeks to ensure that the Lieutenant Governor is necessarily granted an opportunity to exercise the power entrusted to him under proviso to clause (4) of Article 239AA of the Constitution, in a select category of cases. It may be noted that Article 239AA deals with special provisions that are applicable to the National Capital Territory of Delhi and which would govern its functioning.
The bill seeks to ensure that the Lieutenant Governor can make rules in matters which incidentally encroach upon matters falling outside the preview of the Legislative Assembly, it is added.
It has also been stated that the bill will promote harmonious relations between the legislature and the executive and further define the responsibilities of the elected Government and the Lieutenant Governor, in line with the constitutional scheme of governance of the National Capital Territory of Delhi, as interpreted by the Supreme Court.
Delhi’s incumbent Chief Minister, Arvind Kejriwal was, however, quick to condemn the bill as unconstitutional, anti-democracy and contrary to the Supreme Court’s 2018 ruling in the power tussle between the Delhi government and the Central government.
Here is an overview of the bill.
“Government” to mean “Lieutenant Governor”
Section 21 of the Act, as it stands, talks about restrictions on laws passed by the Legislative Assembly with respect to certain matters. It presently has two sub-sections.
The bill, through Section 2, seeks to introduce a third sub-section to Section 21, which states “The expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.“
Widening the powers of the Lieutenant Governor
Section 3 of the bill seeks to extend the powers of the Lieutenant Governor through an amendment of Section 24 of the 1991 Act, which deals with “Assent to bills.”
Section 24, as it stands, lays down three categories of bills where the Lieutenant Governor “shall not assent to, but shall reserve for the consideration of the President.”
Through Section 3 of the bill, an additional clause (d) is sought to be added to Section 24 for bills that “incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly.“
This means that the Lieutenant Governor has now been granted the power to withhold assent on this additional category of bills, effectively widening his/her powers.
Limiting the administrative power of the Delhi Legislative assembly
Section 33 of the Act, as it stands, states that the legislative assembly may make rules for regulating its conduct and business, subject to the provisions of the Act.
In the said section, after the words “conduct of its business“, the words “which shall not be inconsistent with the Rules of Procedure and Conduct of Business in House of People” is sought to be added by the bill through Section 4.
Coupled with this change, Section 4 of the bill seeks to add a proviso to the Section 33 of the Act which states that the Legislative assembly shall not make any rule to enable itself or its committee to consider in matters of day-to-day administration of Delhi or conduct inquiries in relation to adminsitration. Notably, this provision is also sought to be made retrospective in its effect.
“Provided that the Legislative Assembly shall not make any rule to enable itself or its Committees to consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions, and any of the rule made in contravention of this proviso, before the commencement of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, shall be void”, reads Section 5 of the bill.
Opinion of the Lieutenant Governor, to be obtained
Section 5 of the bill seeks to add a proviso to Section 44 of the 1991 Act (dealing with ‘conduct of business’), which makes it compulsory for the government to obtain the opinion of the Lieutenant Governor on all matters, before taking any ‘executive action‘.
As it stands, Section 44 (2) of the Act states,
“Save as otherwise provided in this Act, all executive action of Lieutenant Governor whether taken on the advise of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor.”
To this, Section 5 of the bill seeks to add the following proviso:
“Provided that before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, State Government, Appropriate Government, Lieutenant Governor, Administrator or Chief Commissioner, as the case may be, under any law in force in the Capital, the opinion of Lieutenant Governor in term of proviso to clause (4) of Article 239AA of the Constitution shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.”
The statements and objects of the bill states that Section 44 has been amended because “there is no structural mechanism provided in the Act for effective time-bound implementation of said section. Further, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing order thereon.”