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- GS 2 || Polity || Other Constitutional Dimensions || Centre-State Relations
Why in the news?
The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was recently introduced in Lok Sabha allegedly curbs the powers of the Legislative Assembly and the government of the National Capital Territory (NCT) of Delhi.
The Bill amends certain powers and responsibilities of the Legislative Assembly and the Lieutenant Governor.
- Restriction on laws passed by the Assembly: The Bill provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (LG).
- Rules of Procedure of the Assembly: The Act allows the Legislative Assembly to make Rules to regulate the procedure and conduct of business in the Assembly.
- The Bill provides that such Rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.
- Inquiry by the Assembly into administrative decisions: The Bill prohibits the Legislative Assembly from making any rule to enable itself or its Committees to:
- consider the matters of day-to-day administration of the NCT of Delhi and
- conduct any inquiry in relation to administrative decisions.
- The Bill also provides that all such rules made before its enactment will be void.
- Assent to Bills: The Act requires the LG to reserve certain Bills passed by the Legislative Assembly for the consideration of the President. These Bills are those:
- which may diminish the powers of the High Court of Delhi
- which the President may direct to be reserved,
- dealing with the salaries and allowances of the Speaker, Deputy Speaker, and members of the Assembly and the Ministers, or
- relating to official languages of the Assembly or the NCT of Delhi.
- The Bill requires the LG to also reserve those Bills for the President which incidentally cover any of the matters outside the purview of the powers of the Legislative Assembly.
- LG’s opinion for executive actions: The Act specifies that all executive action by the government, whether taken on the advice of the Ministers or otherwise, must be taken in the name of the LG.
- The Bill adds that on certain matters, as specified by the LG, his opinion must be obtained before taking any executive action on the decisions of the Minister/ Council of Ministers.
NCT of Delhi vs. Union of India (2018):
In this landmark judgment, the Supreme Court had given following observations:
- On the status of NCT of Delhi: It had observed that Administration of Union Territory under Article 239(1) is different from Article 239AA which provides for an elected Legislature.
- The court further observed that the Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the Council of Minister.
- Also, the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
- Position of Lieutenant Governor (LG): The Court in this judgement held that LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
- Reference of matter to the President by the LG: Article 239AA (4) says that in the case of a difference of opinion between the LG and his Ministers on any matter, the LG shall refer it to the President for final decision and act according to it.
- However, the court inferred that the words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.
- The Court also held that the President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.
Grey areas of the judgement:
The judgement though seemed to resolve the constitutional deadlock between the Union and the Government of NCT of Delhi, yet it had many great areas. Some of them are:
- Overlapping Areas: The court ordered that the LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’. However, Public Order is a very wide connotation, which subsequently leads to overlapping executive powers. It is bound to affect the functioning of the NCT of Delhi if left the term ‘public order’ undefined.
- Ambiguity on Article 239AA (4): The court did not enumerate the issues in respect of which the LG can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the LG and the State government.
Rationale of the new Bill
- The objective behind bringing in Government of National Capital Territory of Delhi (Amendment) Bill, 2021 as has been stated in the ‘objectives’ in the Bill itself is to clearly establish the boundaries of two governments and do away the ambiguities in 2018 judgement.
- However, this is clear from the above given analysis that instead of clearing the grey areas of 2018 Supreme Court judgement, the Bill is creating even more grounds for Constitutional tussle between the Union and the Government of NCT of Delhi.
- Overlooking Constitutional Provisions: Article 239AA specifies that the legislative assembly of the NCT of Delhi is capable of making laws on any matter except land, public order and Police.
- In the 2018 judgement, the Supreme Court had reiterated this position by recognising the powers of the Legislative assembly and saying that the Union Government has exclusive powers only related to the three topics mentioned above.
- Strengthened position of LG vis-a-vis elected representatives of NCT of Delhi: Also in the same 2018 judgement, the SC opined that the Lieutenant Governor (LG) of NCT of Delhi would only act on the aid and advice of the council of Ministers.
- The Bill gives discretionary powers to the LG even in matters where the Legislative Assembly of Delhi is empowered to make laws.
- Discretionary powers to LG: The Bill also seeks to ensure that the LG is “necessarily granted an opportunity” to give her/his opinion before any decision taken by the Council of Ministers is implemented.
- Political Vendetta: The NCT of Delhi is being ruled by a political party other than the party in power at Union government. The recent political dynamics seems to be in strong favour of the regional political party. Thus, the Bill aiming to curb the powers of the Government of NCT of Delhi may be to avenge the political loss.
- The Constitutional arrangement as designed for the governance of NCT of Delhi follows the democratic spirit in which there is provision for an elected government and a Lieutenant Governor (LG).
- The purpose of having a LG is to have minimum requisite control over some issues of strategic significance.
- Thus, the Constitution envisages a harmonious design of governance with representation from the people of NCT of Delhi and an appropriate control of the Union government.
- Another way out could be to adopt the model of administrative sharing of power between the Federal Government of US and the state of Washington.
- Under such model, only the strategic areas and buildings such as Parliament, Supreme Court etc. will be under the effective control of the Union government and the rest of the areas are under jurisdiction of NCT of Delhi.
Model Mains Question:
- In the backdrop of the judgement in NCT of Delhi vs. Union of India (2018), discuss the impacts of the newly introduced Bill on the federal relations between the Union government and the government of NCT of Delhi.