Power to L-G disenfranchises the people of Delhi: AAP to SC

Updated on Sep 16, 2021 06:48 AM IST

The Government of National Capital Territory of Delhi (Amendment) Act, 2021 and the Transaction of Business of the Government of National Capital Territory of Delhi (GNCTD) Rules, 1993 came into effect from March 28, 2021, by which some crucial provisions of the earlier act stood amended.

Delhi Lieutenant Governor Anil Baijal and Aam Aadmi Party (AAP) chief Arvind Kejriwal (HT Archive)
Delhi Lieutenant Governor Anil Baijal and Aam Aadmi Party (AAP) chief Arvind Kejriwal (HT Archive)
ByAbraham Thomas, Hindustan Times, New Delhi

The Delhi government has told the Supreme Court that an amendment act enacted by the Centre in March gives overriding powers to the Lieutenant Governor (LG) over the Delhi legislature and executive, and is unconstitutional because it has “disenfranchised” the people of Delhi by taking away power from their elected representatives and violating the lawmaking authority of the Delhi assembly.

The Government of National Capital Territory of Delhi (Amendment) Act, 2021 and the Transaction of Business of the Government of National Capital Territory of Delhi (GNCTD) Rules, 1993 came into effect from March 28, 2021, by which some crucial provisions of the earlier act stood amended.

The term “government” as referred to in any law passed by Delhi assembly was amended to mean “Lieutenant Governor” (by adding a new clause (3) to Section 21 of the GNCTD Act), and the opinion of the LG was made mandatory for executing any decision of a minister or council of ministers on certain matters under any law in force (by adding a proviso to Section 44(2) of the Act).

The Delhi government has submitted in a petition to the Supreme Court that saying “government” means LG extends the Union’s executive power beyond the three excepted subjects – land, law and order and police -- over which the Centre has authority. “The amendment to Section 44 turns this entire scheme on its head and gives the LG executive power through the back door. Hence, this amendment also ought to be struck down,” the petition argued.

The petition, filed on August 9, through advocate Shadan Farasat, was mentioned by the Delhi government represented by senior advocate Abhishek Manu Singhvi on Monday before the Chief Justice of India (CJI) for an urgent listing. The CJI agreed to list the matter without specifying a date. The copy of the petition was made available only on Wednesday.

“The impugned provisions as amended by the Amendment Act have in effect disenfranchised the people of Delhi, and violated their political rights under the Constitution in as much as the Amendment Act takes away the power from their elected representatives and gives it to an unelected official, being the LG,” the petition said.

It further stated: “The Amendment Act, by giving the LG overriding powers over the Delhi legislature and the executive, strikes at the root of representative democracy….. giving the LG the power to veto the will of the people of Delhi…from expressing their sovereign will through their elected representatives.”

The petition also contended that the GNCTD Act “diminishes the constitutionally guaranteed powers and functions of the elected legislative assembly and council of ministers of the NCT of Delhi” and overturns the constitutionally stipulated balance between the Delhi and Union governments.

The provisions of the 2021 Act, the petition said, “are an attempt to treat the LG as the default administering authority over the NCT of Delhi” by authorising him to withhold consent from bills that, in his judgment, may be “incidentally” outside the scope of legislative assembly’s legislative powers and by empowering him interfere in the day-to-day administration of the NCT.

The provisions “impermissibly encroach” on the scope of the Delhi legislative assembly’s “core legislative functions” by interfering with the assembly’s power to frame its own rules of business or to hold the executive to account, the petition added.

The new law prohibits the assembly from making any rule to enable itself or its committees to consider matters of day-to-day administration of the Capital and conduct any inquiry in relation to administrative decisions

The accompanying amendments to the 1993 Transaction of Business Rules have dented the independence and working of the assembly, according to the petition. Article 239AA of the Constitution recognises Delhi as the National Capital Territory having an LG and an assembly allowed to legislate on all other matters other than three excluded subjects – land, law and order and police, where Centre alone can legislate.

“Introduction of a deeming provision in Rule 49 of 1993 Rules now allows for any and every matter to be referred by the LG to the central government,” the petition said, adding that the amendments have vested direct executive authority in the secretaries of the Delhi government, allowing them to perform without reference to and even in derogation of the orders of the concerned ministers or council of ministers.

The petition held the current amendments violate a 2018 decision of the Supreme Court in Government of NCT of Delhi v Union of India which interpreted Article 239AA and said: “The exercise of establishing a democratic and representative form of Government for NCT of Delhi… would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for NCT of Delhi.”

The petition said that the basis of this judgment still remains as Article 239AA has not been amended.

The Union Ministry of Home Affairs had on April 29, 2021, said that the “objective of the Amendment Act is to make it more relevant to the needs of the Capital” and “further define the responsibilities of the elected government and the Lt. Governor (LG)”. “The Amendment would ensure better governance in the NCT of Delhi and lead to improved implementation of schemes and programmes meant for the common people of Delhi... The amendments to the GNCTD Act, 1991, in no way alter the constitutional and legal responsibilities of the elected government to take necessary action, in respect of the subjects transferred to them in the State and Concurrent Lists of the Constitution of India, including subjects such as health, education, etc,” the statement said.

“…In 2016, disputes and differences arose between the L-G and the Delhi government in respect of powers, duties and governance... The constitutional bench of Supreme Court had held that the council of ministers shall inform all its decisions to the L-G but that does not mean that the concurrence of the L-G is required,” said AAP in a statement.

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