The President of India Ram Nath Kovind on Sunday gave assent to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, which enhances the powers of the Lieutenant Governor and limits the elected government’s power in Delhi.
The centre had passed the GNCTD (Amendment) Bill, 2021 in the Lok Sabha on last Monday and later in Rajya Sabha on Wednesday.
The centre had introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 in the Parliament to amend the Government of National Capital Territory of Delhi Act, 1991, that provided a framework for the functioning of the Legislative Assembly and the government of the National Capital Territory (NCT) of Delhi.
The new law seeks to amend certain powers and responsibilities of the Legislative Assembly and the Lieutenant Governor.
What is the Government of National Capital Territory of Delhi Act, 1991?
Delhi is a Union Territory with a legislature, and it came into being in 1991 under Article 239AA of the Constitution inserted by the Constitution (Sixty-ninth Amendment) Act, 1991.
Subsequently, , was enacted by the centre to supplement the provisions of the Constitution concerning the Legislative Assembly and a Council of Ministers for the territory of Delhi. As per the existing Act, the Legislative Assembly has the power to make laws in all matters except public order, police and land.
The act also outlined the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the CM with respect to the need to furnish information to the L-G.
However, several flaws in the GNCTD Act, 1991, hindered the smooth functioning between the Delhi government and the L-G. In the previous act, there was no structural mechanism to ensure the time-bound implementation of the rules. Also, the law did not have clarity about what proposal or matters need to be taken up with the L-G before issuing any directive.
The earlier provisions also gave rise to conflict between the elected government in Delhi and the L-G often, resulting in governance deficit in Delhi.
LG-Delhi Government conflict:
The conflict between the Lieutenant Governor and the Delhi government has time-and-again given rise to a constitutional crisis in Delhi. The lack of clarity in the 1991 act had resulted in the ambiguous interpretation of the provisions of division of powers between the L-G and the Delhi government.
To make it more complex, a five-judge Supreme Court Bench, in 2018, had held that the L-G’s concurrence is not required on issues other than police, public order and land, thus giving more powers to the elected government. The apex court had also added that decisions of the Council of Ministers will, however, have to be communicated to the L-G.
In its judgement, the apex court said that L-G was bound by the aid and advice of the council of ministers. However, in the same verdict, the Supreme Court also pointed out that the elected government must keep in mind that Delhi is not a state.
Following the judgement, the elected government in Delhi altogether stopped sending files on executive matters to the L-G before the implementation of any decision.
To rectify the flaw and to give effect to the interpretation made by the Supreme Court in the issue, the Centre introduced new amendments to the GNCTD Act, 1991.
What are the provisions under the new law?
The GNCTD (Amendment) Act, 2021 seeks to end the ambiguity regarding the time-bound implementation of the laws and the confusion surrounding matters where LG consultation was necessary. The new law will amend Sections 21, 24, 33 and 44 of the 1991 Act.
According to the statement of objects and reasons of the bill, the amendment will give effect to the interpretation made by the Supreme Court, that seeks, inter alia, “to clarify the expression “Government”, which in the context of legislation to be passed by the Legislative Assembly of Delhi, shall mean the Lieutenant Governor of the National Capital Territory of Delhi”.
“The said bill will promote harmonious relations between the legislature and the executive, and further define the responsibilities of the elected government and the L-G, in line with the constitutional scheme of governance of the National Capital Territory of Delhi, as interpreted by the Supreme Court,” the statement of objects said.
Further, the GNCTD (Amendment) Act, 2021 seeks to give primacy to Delhi’s lieutenant governor (L-G) over the elected government in Delhi. In other words, it seeks to clarify that the “government” in Delhi means the “Lieutenant Governor”.
The new law states that the Delhi assembly continues to make laws on all subjects in the state list and concurrent list except public order, police and land. Under the new law, the Delhi government will now have to seek the lieutenant governor’s opinion before any executive action after the passage of the bill.
The new law says, “When a bill has been passed by the legislative assembly, it shall be presented to the lieutenant governor and the lieutenant governor shall declare either that he assents to the bill or that he withholds assent therefrom or that he reserves the bill for the consideration of the president.”
The amended law gives discretionary powers to the L-G even in matters where the Legislative Assembly of Delhi is empowered to make laws. The GNCTD (Amendment) Act, 2021 also ensures that the L-G is “necessarily granted an opportunity” to give her or his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is implemented.
Most importantly, the new law also bars the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.