DELHI (AMENDMENT) BILL, 2021 BY DEEPIKA DUBEY @ LEXCLIQ

DELHI AMENDMENT BILL, 2021

 

The Government of National Capital Territory of Delhi Act, or GNCTD Act, was recently amended by the Indian Parliament during its March session. On March 15, 2021, a bill amending the GNCTD Act of 1991 was proposed in Parliament. The Bill was first passed in the Lok Sabha on March 22nd, and then in the Rajya Sabha on March 24th. The Congress, Aam Aadmi Party, and other opposition parties stepped out of the Rajya Sabha well before the bill was passed, expressing their displeasure with the allegedly unconstitutional bill.

KEY HIGHLIGHTS

  • Limitations on legislation enacted by the Assembly: The Act stipulates that any reference to “government” in a law passed by the Legislative Assembly must be referred to the Lieutenant Governor (LG).
  • Procedure and rules: The Act empowers the Legislative Assembly to enact Rules that govern the procedure and conduct of business in the Assembly. The Act stipulates that such rules must be in accordance with Lok Sabha’s Rules of Procedure and Conduct of Business.
  • Provision of Inquiry: The Act prevents the Legislative Assembly from enacting any rule that would allow it or its Committees to (i) evaluate the day-to-day administration of the NCT of Delhi, and (ii) undertake any inquiry into administrative decisions. Furthermore, the Bill states that any such rules enacted prior to its enactment shall be null and void.
  • Assent by the president: The Legislation necessitates the LG to hold certain bills passed by the Legislative Assembly for the President’s approval. These Bills are those that: (i) may limit the High Court of Delhi’s powers, (ii) which the President may direct to be earmarked, (iii) deal with the Speaker, Deputy Speaker, members of the Assembly, and Ministers’ salaries and allowances, or (iv) negotiate with the Assembly’s or the NCT of Delhi’s local dialects. The Act also requires the LG to reserve for the President any bills that cover subjects that are outside the scope of the Legislative Assembly’s authority.
  • For executive actions, LG’s opinion is important: All executive actions made by the government, whether on the advice of the Ministers or otherwise, must be done in the name of the LG, according to the Act. The Act further specifies that before adopting any executive action on the Minister’s/Council of Minister’s choice, the LG’s viewpoint must be solicited on specific subjects as stated by the LG.

CRITICISM

The Act’s new measures significantly decrease the elected government’s relevance. It reduces the government’s productivity and timetables, making it difficult for it to deal with pressing issues because they need to confer with LG remains in place. Also, because there is no set time limit for the LG’s opinion, he or she is free to take his or her time. Critics argue that the L-G could utilize his broad powers to stymie the government’s administrative operations and, as a result, shift the political tides against the incumbent if he so desires.

The amendment also goes against the spirit of Federalism in a country whose constitutional designers concentrated on an equilibrium between the state and the Centre that became attractive after division with a movement toward the Centre. Even when logically examined, the amendment is necessarily in conflict with the Supreme Court’s decision.

JUDICIAL PRONOUNCEMENTS

In terms of judicial interpretation of the Basic Structure, following Kesavananda, the Supreme Court conducted exploratory searches to find the Constitution’s basic elements on a regular basis. Chief Justice SM Sikri highlighted what he thought to be some of the Constitution’s core elements in Kesavananda:

The federal concept might be the result of a mutual agreement by numerous sovereign states to form a nation and hand over a significant portion of their governance power to the Centre at the national level. It could, on the other hand, be the consequence of an evolutionary context in which a new nation forms and, in order to retain its newly identified national unity, the nation divides itself into two important units for the purpose of efficient power-sharing at two different levels. The first is federalism in the United States, and the second is federalism in India.

In SR Bommai, Justice AM Ahmadi went on to argue that the presence of the Union and the States, as well as the division of powers amongst them, is the foundation of a federation. The distribution of authorities under a federal agreement is thus referred to as federalism. The views expressed by Justices Jeevan Reddy and SC Agrawal are also crucial. They had noted,

“The expression “Federation” or “federal form of Government” has no fixed meaning. It broadly indicates a division of powers between a central (federal) Government and the units (States) comprised therein. No two federal constitutions are alike. Each of them, be it of the USA, Canada, Australia, or any other country, has its own distinct character. Each of them is the culmination of a certain historical process. So is our Constitution. It is, therefore, futile to try to ascertain and fit our Constitution into any particular mold. It must be understood in the light of our own historical process and constitutional evolution. One thing is clear it was not a case of independent States coming together to form a Federation as in the case of USA…”

…The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with its powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States…”

The Supreme Court observed in ITC Ltd v. Agricultural Produce Market Committee, a case involving the Centre’s levy of a license fee in relation to the selling of tobacco in Bihar, that in an attempt to retain the federal character of the Constitution, it was crucial to follow the Constitution in such a way that it did not whittle down the powers of state legislatures.

CONCLUSION

Due to the cohabitation of Articles 239 and 239AA, there is a jurisdictional disagreement between the Centre and NCT of Delhi.

Due to the cohabitation of Articles 239 and 239AA, there is a jurisdictional disagreement between the Centre and NCT of Delhi. New Delhi is a Union Territory and Article 239 permits the Lieutenant Governor (LG) to operate independently of his Council of Ministers. On the other hand, the Delhi state government claimed that Article 239AA of the Constitution provides it special standing as a legislatively elected administration. In the NCT of Delhi, this causes a political battle over the LG’s and state government’s administrative authority.

A five-judge bench of the Supreme Court concluded in Govt. Of NCT Of Delhi v. Union of India that the LG’s approval is not essential on subjects other than police, public order, and land. The Court went on to say that the Council of Ministers’ decisions must be notified to the LG and that the LG is bound by the Council of Ministers’ assistance and advice.

The LG of Delhi’s standing, according to the Court, is not that of a Governor of a State, but rather that of an Administrator in a specific way. It further stressed that the elected administration should remember that Delhi is not a state.

The newly passed Amendment Bill will require the Government of the National Capital Territory of Delhi to seek the LG’s advice before adopting executive decisions. Furthermore, the LG has come to be associated with the government. In addition, the Bill gives the LG broad authority to submit any issue to the President. These clauses are intrinsically incompatible with the Supreme Court’s 2018 decision and are a violation of the Doctrine of Pith and Substance. Logic dictates that the apex court take advantage of the current issue to settle the jurisdiction once and for all.

Only if all of India’s states flourish will the country flourish. If there is a conflict between the Center and the States, the firm underpinnings of federalism and democracy on which our society has prospered will begin to erode.

 

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