Bill cites SC verdicts, but may upset power balance

The bill and its wording have sparked anger from Delhi’s ruling Aam Aadmi Party (AAP), which said the proposed law violates the rulings.

The Bill introduced by the Union home ministry in Lok Sabha to amend the 1991 Government of National Capital Territory of Delhi (NCTD) Act mentions that it relies on two judgments by the Supreme Court: a Constitution bench verdict on July 4, 2018 and a two-judge bench decision on February 14, 2019.

Delhi Chief Minister Arvind Kejriwal, Speaker of Delhi Assembly Ramniwas Goel and L-G Anil Baijal at Delhi Vidhan Sabha. (ANI Photo)

Both these judgments delineated the respective powers of the Centre and the elected government of Delhi in administration of the national capital.

The bill and its wording, however, have sparked anger from Delhi’s ruling Aam Aadmi Party (AAP), which said the proposed law violates the rulings.

At the core of the controversy appears to be an amendment to Section 44 of the NCTD Act, which will insert a new proviso making it mandatory for the Delhi government to seek the opinion of the Lieutenant Governor before taking any executive action in pursuance of decisions by the council of ministers, or any other decision under any law in force in the Capital.

The proposed course of action leaves no room for the elected government to exercise its discretion in deciding categories of matters which require a prior-consultation with the L-G, or to send files to the L-G after a decision is made by resorting to the executive or legislative powers provided under the Constitution.

The Union home ministry has made this provision in spite of the five-judge bench in its July 2018 making it clear that the L-G is “bound to act on aid and advice of the council of ministers” in matters where the Delhi government acts in exercise of its executive and legislative powers, except relating to three subjects – police, land, and law and order.

The Constitution bench held unequivocally that while it is necessary to apprise the L-G of all the decisions, it does not mean that his concurrence is required.

“We have referred to the relevant rules of Transaction of Business Rules, 1993 which require that the Lieutenant Governor has to be apprised and kept in the loop of the various proposals, agendas and decisions taken by the Council of Ministers. However, a careful perusal of these rules nowhere suggests that the communication to the Lieutenant Governor is to obtain his concurrence or permission,” the bench had held in its majority judgment.

The judgment also added that, “It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of the Parliament to treat Delhi Government as a representative form of government.”

“...the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required,” it further said.

The bench also suggested that “the Lieutenant Governor must work harmoniously with his ministers and must not seek to resist them at every step of the way,” while adding that “neither of the authorities should feel that they have been lionised.”

Interpreting a provision in the NCTD Act that empowers the L-G to refer a matter to the President in case of a difference of opinion between him and the government, the five-judge bench had aid that the L-G “should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.”

Similarly, the 2019 judgment also acknowledged the L-G must be informed of all decisions of the elected government but this did not mean a requirement of concurrence by him.

“We would like to add that normally, and generally, the L-G is expected to honour the wisdom of the council of ministers. He is also expected to clear the files expeditiously and is not supposed to sit over it unduly. He is under duty to bear in mind expediency and urgency of the subject matter of the decisions taken by the GNCTD, wherever situation so demands. That in fact is the facet of good governance,” held the 2019 judgment.

It also asked the NCT government to give due deference to the unique nature of the role assigned to the L-G, underlining that “both should realise that they are here to serve the people of NCTD and that mutual cooperation, thus, becomes essential for the effective working of the system.”

Another amendment seeks to invalidate retrospectively rules made by the legislative assembly of Delhi or committees/house panels to consider the matters of “day-to-day administration of the Capital” or conduct inquiries in relation to the administrative decisions.

This provision could nix the peace and harmony committee’s inquiry into the role of Facebook in the February 2020 riots in north-east Delhi, and will lead to questions over most of the house panels constituted to consider matters of “day-to-day administration of the Capital”.

Most importantly, the proposed amendment will make constitution of house panels and their exercise vulnerable to challenge before the courts since the objective of their setting up will either relate to the “day-to-day administration of the Capital” or “in relation to the administrative decisions”.

At least at seven different places in the constitution bench judgment, the apex court has said that Delhi assembly has legislative and executive competence over all subjects except three subjects. The 2021 amendment cites the same judgment but has clearly sought to give an upper hand to the L-G and the Centre in administration of the Capital.