The author of this post is Mr. Lalit Ajmani , Advocate at practising at Delhi High Court and District Courts.
People vote to be administered and being led by the government of their choice, and that is one of the glorified principles of the Indian Constitution. However, the Central Government, recently, has passed a legislation that prima facie defeats this noble feature of our Constitution. The Parliament via the Government of National Capital Territory of Delhi (Amendment) Act, 2021[1] (“the New Act”) has brought substantial and bold amendments to the Government of National Capital Territory of Delhi Act, 1991[2] (for brevity “the Principal Act”) whereby the powers granted to the Delhi Assembly and the Chief Minister, who get elected by free and fair elections, are now transferred to the Lt. Governor of Delhi who is appointed by the President of India by the aid and advice of the Central Govt.The New Act has practically made the Lt. Governor more powerful than the constitutional post of the CM qua the administration of Delhi.
On one hand, the Chief Minister of Delhi has raised his reservations against the New Act on multiple occasions and also alleged that the New Act violates the fundamental principles of the Constitution. The Delhi Govt. has also alleged that the New Act is not in consonance with the Hon’ble Supreme Court decision in the case of Govt of NCT of Delhi vs. Union of India & Anr.[3], where the Court has already defined the limited scope of the Lt. Governor qua the functioning and the administration of the Delhi Govt. Whereas on the other hand, the Central Govt has, on various occasions, found defending the New Act by hampering on the fact that the Delhi is not a full State, and it has been functioning under the shadow of the centre, hence the New Act promotes the Constitutionalism instead of defeating it.
The New Act has been challenged by various litigants before Delhi High Court, and the court has directed the govt. to file its reply in the said cases[4]. it is apparent that the New Act will face the test of Constitutionalism in the upcoming days. On these lines, the author has tried to analyse the relevant provisions of law in order to determine the constitutional validity and the probable fate of this New Act.
Genesis of the Govt. of NCT of Delhi
Before jumping onto the Principal Act, it is imperative to refer the roots of the law which gives birth to the Govt. of NCT of Delhi.
Part VIII of the Constitution[5] deals with the Union Territories. The bare perusal of Article 239 shows that the Union Territories are being administered by the President through an administrator appointed by the President. However, Article 239AA emerges out as an exception/ proviso to Article 239 by giving power to the Delhi Assembly for the administration of Delhi subject to three Entries of the State List i.e., Entry 1 – Public Order, Entry 2- Police, and the Entry 18 – Land. The similar status is also provided to the Union Territory of Puducherry. Furthermore, Article 240 allows the President to make regulations for the good governance of the various Union Territories including Puducherry, but not for the NCT of Delhi.
In 1991, the Parliament had passed the Principal Act which further solidified the role, power and the status of the Legislative Assembly and the Chief Minister of Delhi. The aim and objective of the Principal Act is to supplement to the provisions of the Constitution. It is apposite to mention that among various provisions of the Principal Act, section 45 stipulates that the Chief Minister is merely obligated to furnish and communicate the administrative decisions to the Lt. Governor, and nowhere it is mentioned that the permission of the Lt. Governor is required to run the administration of Delhi.
Hence, the law succinctly shows us that the administration is the constitutional right of the elected CM and the Delhi Administration, whereas the Lt. Governor has nothing but the limited role to play. Even the President of India can’t make regulations for the governance of the NCT of Delhi as per the Constitution[6].
Now, let’s see what changes are brought via the New Act which have created a lot of hue and cry in the administration of Delhi.
The New Act
The Parliament has basically brought the following 4 (four) amendments to the Principal Act: –
- The expression “Government” shall mean the Lieutenant Governor.
- Now the Lt. Governor can reserve his assent to any Bill passed by the Legislative Assembly if he is of the opinion that the concerened Bill falls outside the purview of Legislative Assembly’s powers.
- The Legislative Assembly, while making rules for its own Assembly, is now bound to adhere to the Rules of Procedure and Conduct of Business of the House of People.
Furthermore, the Assembly is now bereft of making any rules or conduct inquiries qua day-to-day administration of the NCT of Delhi.
- Any executive decision, as may be prescribed by the Lt. Governor, can’t be acted upon before taking the opinion of the Lt. Governor.
However, the Centre has not brought any Constitutional Amendment regarding Part VIII, or in relation to Article 239AA, and Article 240 of the Constitution which can allow the Govt. to vest more powers to the Lt. Governor. Despite that, the New Act has made the Lt. Governor more powerful than the elected Govt.
Till today, no stay order regarding the implementation of the New Act has been passed, therefore, the aforesaid amendments, are now applicable and in force over the Delhi Govt. irrespective of its reservations.
The pertinent questions like ‘whether the New Act is constitutionally valid? Is it in consonance with the Constitutional powers granted to the CM and the Delhi Assembly? And so many other ancillary issues will get solved in future when the New Act will get tested before the Court. However, a brief analysis of the Constitutional validity of the New Act is discussed herein in order to understand the probable fate of the New Act.
Whether the New Act is Constitutionally Valid?
Undoubtedly, by the virtue of the New Act, the elected government has now become answerable to the Lt. Governor. Furthermore, the Ld. CM and his ministers are also bereft of making any administrative decision without the consent of the Lt. Governor which doesn’t seem to be the intention of the framers of the Constitution.
The New Act is also not in consonance with the Constitutional provisions. Article 239AA clearly empowers a CM and State Assembly, regarding the administration of the Capital subject to three areas i.e., Public Order, Police, and Land. Moreover, Article 240 limits the Presidential Powers to formulate any policies qua the governance of Delhi. Furthermore, no Constitutional Amendment has brought to amend Part VIII of the Constitution. Hence, the New Act is Constitutionally bound to respect the limitations prescribed under Part VIII of the Constitution. Needless to say, that any law which violates the Part VIII of the Constitution may not survive the test of Constitutionalism in a court of law.
Now if we analyse the four amendments within the boundaries of the Constitution, we’d realise that none of the amendments may be able to satisfy the Constitutional test. Firstly, the Government can’t mean the Lt. Governor as the Government is chosen by the people of the concerned area. It is never meant to be a Constitutional Post who is selected by the Central Govt.
Secondly, the New Act gives abundant discretionary power to the Lt. Governor to withhold his assent to any Bill passed by the Assembly. The said amendment can be said to be a tricky one as the said amendment may not seem unconstitutional on its patent reading, however the same allows the Governor to stop any new law as per his discretion. Again, the same gives more power to the selected post instead of the elected constitutional post(s).
Furthermore, the New Act crippled the Assembly as it can’t make any rule or conduct inquiries qua day-to-day administration of the NCT of Delhi. It is interesting to note that recently the Delhi Govt has initiated an inquiry and issued summon an official of the Facebook regarding Delhi riots occurred in February 2020[7]. The issuance of summons was challenged by the Facebook before the Supreme Court on various grounds including the lack of jurisdiction of the Delhi Assembly to issue such summons. The Central govt was also of the opinion that the Delhi Assemble has no jurisdiction to issue such summons. The Hon’ble Supreme Court has yet to pronounce its judgment on this issue. However, with the passage of the New Act any such inquiry initiated by the Delhi Assembly shall be declared as void. So, if the Delhi Assembly can’t even administer its day-to-day functioning and conduct inquiries pursuant to the same, then there is hardly anything left for the Assembly to take care of.
Lastly, no executive decision, as may be prescribed by the Lt. Governor, can’t be acted upon by the Delhi Govt before taking the opinion of the Lt. Governor. This amendment practically takes away the powers of the Delhi Govt vested in it by the virtue of Article 239AA of the Constitution. It is submitted that the role of every Governor/ Lt. Governor is limited in the States and Union Territories where the Govt is elected by the people. It also defeats the noble principle of Federalism which is a part of the Basic Structure of the Constitution of India.
In addition to the above, the aforesaid amendments clearly defeat the decision of the Five-Judge Constitution Bench of the Hon’ble Supreme Court in the case of “Govt. of NCT of Delhi vs. union of India & Anr”[8]. The Hon’ble Court held that “the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List.” Three areas are public order, police and the land. The Hon’ble Court further clarified the limited role of the Lt. Governor in the administration of Delhi in the following words: –
“The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.”
From the bare perusal of the Constitutional provisions, and the Supreme Court judgment, there can’t be any doubt that the New Act lies on the trembling footings. Asunder from being unconstitutional, the New Act gives unparalleled powers to the Lt. Governor, and it also curtails the effective powers and rights of the Delhi Govt. regarding the administration of its own arena.
However, one may say that Delhi is not a full State and it is somewhat controlled and governed by the Central Govt, thus the New Act is bereft of any irregularities. But the said argument doesn’t stand as per law because, as discussed above, the New Act is not in consonance with the Constitution, and it also defeats the principle of Federalism by making the elected Govt. dependent upon the Lt. Governor.
The New Act may not survive for long and the decisions, if any, of the Lt. Governor pursuant to the New Act may also get reversed or nullified. In the midst of this Constitutional battle, the major concern of the present is that the rights and the interests of the people who have already elected their Govt. shouldn’t get compromised.
[1] Available at https://www.livelaw.in/pdf_upload/gnctd-amendemnt-bill-391206.pdf
[2] Available at https://prsindia.org/files/bill_track/2021-03-15/GNCTD%201991.pdf
[3] Civil Appeal No. 2537/ 2017; Available at https://indiankanoon.org/doc/69467663/
[4] “Will Create Autocratic Form of Government”: AAP Member Moves Delhi HC Challenging ViresoOf GNCTD Act {Neeraj Sharma vs. Union of India & Anr. (case is pending adjudication)} Available at https://www.livelaw.in/news-updates/aap-member-moves-delhi-hc-challenging-vires-of-gnctd-act-basic-structure-174580
[5] Available at https://legislative.gov.in/sites/default/files/coi-4March2016.pdf
[6] Article 240 of the Constitution
[7] “Delhi Assembly Lacks Competence To Summon Facebook For Enquiry Into Delhi Riots : Datar In Supreme Court” published on 02.02.2021; Available at https://www.livelaw.in/top-stories/supreme-court-right-to-remain-silent-delhi-riot-harish-salve-facebook-ajit-mohan-169293
[8] Supra note 03
Preferred Citation: Lalit Ajmani , Whether the GNCTD (Amendment) Act, 2021 is constitutionally Valid? , The Criminal and Constitutional Law Blog, Published on 21st August 2021