At the time of framing the constitution, India adopted the West-Minister Parliamentary form of Government, in which the governor or the President is the nominal head and the real power lies in the elected government. These nominal heads were to work at the aid and advice of the executive of the elected government. Delhi being the capital of the Union of India has gone through many governance changes from being governed by a centrally appointed Governor to a representative legislative assembly with a Council of Ministers and a Chief Minister. However, the Government of National Capital Territory of Delhi (Amendment) Act, 2021 stands in contradiction to these constitutional principles. This Act aims to take away the power from the elected government of Delhi and make the Lieutenant Governor of Delhi, who is appointed by the Central Government, the central figure in the decision-making process. The Supreme Court, defending constitutionalism and democratic principles, had in NCT of Delhi v. Union of India hoped for “constitutional renaissance” in India and limited the power of the LG empowering the elected government. This Act is against the principles of representative democracy and cooperative federalism. Not only does this Act is unconstitutional but also overrules the judgment of the Supreme court.
AMENDMENTS PROPOSED BY THE ACT
Delhi, the capital of the Union of India could not have been made a part of any state as this would give a dominant position to that state. Thus, at first, it was made a Part C state, which was governed by a centrally appointed governor and got its first elected legislative assembly in 1951. Then when the demands of its state-hood increased, in 1991 the 69th Constitution Amendment with the Government of National Capital of Delhi Act,1991 was introduced which inserted Article 239AA in the Constitution which provided Delhi a special status and provided with a legislative assembly.
If the GNCTD Act, 2021 is implemented then the popular government which is elected by the citizens of Delhi will not be able to function effectively on the matters which has been vested upon it by the Constitution. Firstly, the Act has changed the meaning of the term “Government” per se. As per the Act, the expression “government” in any of the Acts passed by the legislature will mean the Lieutenant Governor and not the elected government. Secondly, this Act states that the Lieutenant Governor has the power to reserve or refuse to give assent and send any Act for consideration to the President, passed by the legislative assembly which in his opinion is outside the purview of their legislature. Thirdly, which is arguably the most outrageous provision states that the elected government before taking any administrative action must take the opinion of the LG and without it, that executive action cannot be passed. The Union Territory of Delhi was provided a special status by Article 239AA of the Indian Constitution. The power to make laws is given to the state legislature of Delhi by the Constitution and not by the GNCD Act, 1991 which this Act proposes to amend. Therefore any change in these provisions can only be introduced as a Constitutional Amendment.
This Act merely reduces the elected government, which is elected by the citizens by a democratic process to a vestigial organ and makes the Lieutenant Governor, the “Government” of Delhi, who is nominated by the central government and is not a representative of the citizens. Not only does the Act makes the LG as the “Government” in every Act passed by the legislature, but also it bestows upon him the power of giving an opinion on every executive action. This provision is very problematic as the government has to take many quick actions and that too in these unprecedented times and taking an opinion on every executive action which needs urgent effect would cause a lot of turmoil and will not allow the government to function efficiently.
AGAINST THE JUDICIAL STANCE
This is not the first instance of turf between the Central government and the Delhi legislature. These are so often that the issues of power struggle went to the Supreme Court. In 2018 in the case of Government of NCT of Delhi v. Union of India, the Apex Court assigned a boundary of power between the LG and the Delhi legislature. In this judgment, the court opposed the centralization of power in the hands of LG and held that the LG is the administrative head but his power is limited and has to work on the advice of the executive except in the matters of police, land, and public order. They only wanted the LG to be informed and he does not have any decision-making power and if any issue arises on the jurisdiction, then he can refer the matter to the President, which is an exceptional power. So the excessive power conferred upon the LG is against the ideals of democracy which is based on collective responsibility, taking prior concurrence on every executive action which this Act proposes is contrary to this judgment. The judgment held that Federalism and representative democracy is a part of the basic structure of the Constitution which this Act goes against as it curtails the power of the elected government. The elected government and its executive are responsible and accountable to the voters of Delhi, so they should have sufficient power to function efficiently. Government should have the consent of the governed to make rules and policies as the governed has the power to dethrone the government every election if the latter does not meet the expectations of the former. The GNCT Act is an attempt to overrule the apex court’s judgment legislatively.
IS IT UNCONSTITUTIONAL?
One of the characteristics of the Indian Constitution is the idea of the Federal Government. The apex court in the case of Kehsvanand Bharti v. Union of India has held that Federal character is a part of the basic structure of the Constitution and any law in contrary to this would be made unconstitutional. The idea of the Federal government talks about the division of power between the state and the Centre, which provides the state with sufficient power to make its policies. Though Delhi is a Union territory and not a state it has a special status by Article 239AA of the Constitution which provides it a representative government. The SC has already given its interpretation of this Article and provided the elected government, the power to function independently except in certain subjects. Therefore this Act is against the principle of cooperative federalism as it gives the Central government the over-riding power over the elected government of Delhi. Thus it can be said that this Act is unconstitutional as it is against the basic structure of the Constitution.
The Government of National Capital Territory of Delhi (Amendment) Act, 2021, if implemented in the same form, the elected government can do nothing without the will of the LG, who is in the office at the pleasure of the Central government. If The Lieutenant Governor becomes the “Government” of Delhi, the citizens of Delhi will not have a representative government who will have accountability towards them, this will certainly cause an administrative breakdown. The Apex court has already given its interpretation of the special status of Delhi, and certainly, this Act will also go to the court. The Central government claims that this Act is introduced to give effect to the Supreme Court Judgement but in reality it overrules it. The Supreme Court, being the defender of the Constitution should take advantage of this pandemonium and give this constant turf to an end to endorse the ideals of cooperative federalism and constitutional morality, on which the world's greatest democracy is built.
V.Sudhish Pai, Cabinet Government, LiveLaw, 8 Nov,2020.
Government of National Capital of Delhi v. Union of India (2018) 8 SCC 501.
Sanjay Hegde, Delhi’s administration as the tail wagging the dog, THE HINDU, March 23, 2021.
Kehsvanand Bharti v. Union of India, (1973) 4 SCC 225.