Centre's Delhi Amendment Bill is at Odds With Supreme Court's Ruling and the Constitution

The proposed amendments nullify the apex court's decision that the elected government of Delhi can take all decisions within its jurisdiction and execute them without obtaining the concurrence of the lieutenant governor.

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, introduced in the Lok Sabha on March 15, has evoked strong comments from the media as well as experts. This Bill contains amendments that will enhance the powers of the lieutenant governor (LG) of Delhi and further hobble the elected government (led by the Aam Aadmi Party) and emasculate the assembly.

It is very surprising that after a constitution bench of the Supreme Court in 2018 settled the constitutional issues relating to the relationship between the Delhi government and the Union government in matters of governance, parliament has been called upon to amend the Act to unsettle this relationship.

Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991. Though technically a Union Territory, Delhi was treated as a special case, being the capital of the country, and given a special constitutional status by parliament in exercise of its constituent power as against its normal legislative power.  Article 239AA was added to Part VIII of the constitution which contains general provisions relating to the administration of Union territories.

This article provided for an assembly, fully elected, and a council of ministers responsible to the assembly.  It conferred on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police and public order.  The purpose behind granting a special status to Delhi has been explained by the Supreme Court in GNCTD Vs. Union of India in the following words:

“The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic set up and representative from of government wherein the majority has a right to embody their opinions in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the constitution.”

A democratically elected legislature with all the powers of a state legislature except the excluded subjects and a representative government responsible to the legislature with all the executive powers to the exclusion of the executive powers of the Union are the special features of the administrative set up created under Article 239 AA of the constitution.

Also read: The Delhi Amendment Bill Will Increase Rift Between Elected Government and Centre

However, there was one sticking point in the otherwise excellent constitutional scheme contained in this Article. It brought in a provision from the Government of Union Territories Act, 1963, namely, that in case of a difference between the LG and the council of ministers on any matter, the matter shall be referred to the president by the LG for his decision and pending such decision the LG can take any action on the matter as he thinks fit.

Such a provision might have been reasonable or even necessary for a UT under the administrative control of the president. But to bring in such a provision in the constitutional enactment conferring a special status on Delhi was quite unnecessary. It has become the single source of trouble and conflicts between the LG and the elected government of Delhi as the former could disagree with all major administrative and legislative initiatives of the elected government if he so desires.

Although the constitution bench of the Supreme Court has held that the government does not have to seek the concurrence of the LG on its decisions and that any differences between them should be resolved keeping in view the constitutional primacy of representative government and co-operative federalism, the state government is under constant threat from the LG’s power to differ with the government on important issues. The Supreme Court, of course, made it extremely difficult for the LG to refer such matters to the president. It said that he cannot refer a matter mechanically or mindlessly an has to make all attempts to resolve the differences within the framework of the law and the Transaction of Business Rules.

This is the background against which the proposed new amendments – which curtail the powers of the government and the assembly – need to be considered.

Aam Aadmi Party (AAP) activists stage a protest against the Government of NCT Delhi (Amendment) Bill 2021, at Jantar Mantar in New Delhi, Wednesday, March 17, 2021. Photo: PTI/Kamal Singh

One of the amendments says that the rules of the assembly shall not be inconsistent with the rules of Lok Sabha. This is an astounding proposition. It is the privilege inherent in every legislature to conduct its own proceedings as per the rules made by it. The constitution and the statutes have merely recognised this inherent right of the legislatures and made special provisions for it. Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.  Further, each legislative house is independent of the other. So, the Delhi assembly is an independent legislative house and the Lok Sabha has no control over it. Parliament has no power to legislate and take away the inherent right of a legislature to frame rules for conducting its proceedings. Parliament, for example, cannot make a law saying that the Rajya Sabha’s rules will not be inconsistent with the Lok Sabha rules.

Another amendment, if passed, has very serious consequences. It says that the Delhi assembly shall not make rules to enable itself or its committees to consider matters of day-to-day administration. It further says that no rule shall be made by the assembly to conduct inquiries in relation to administrative decisions and if such a rule exists now, it will become void after this amendment comes into force.

Also read: Centre’s Attempt to Give More Powers to Delhi LG May Face Constitutional Challenges

Every democratic legislature has the inherent right to scrutinise the decisions taken by the executive, which flows from the executive being responsible to the legislature. Executive accountability is the essence of the parliamentary system of government, which is a part of the basic structure of the constitution. The Delhi assembly has the inherent and inalienable right to scrutinise the decisions of the government, administrative or otherwise. No authority can take it away. Inquiry into or investigation of the decisions of the executive is an integral part of the legislative oversight of the executive. Parliament has no competence to take away this right through some legislation. These amendments, it can thus be seen, violate the basic structure of the constitution, apart from violating Article 239 AA (6).

Another crucial amendment requires the state government to obtain the opinion of the LG on their decisions before executive action is taken on those decisions. Thus, the elected government cannot take any action unless it obtains the  LG’s opinion. A government is often called upon to take urgent decisions and actions on issues concerning people’s lives.  But after this amendment comes into force, it will have to wait till the LG deigns to give their opinion on the decisions of the government. The effect of this amendment will be that the government will not be able to act quickly on matters which it considers important. There can be no more effective way than this to hobble an elected government and make it totally ineffective, for this amendment does not requires the LG to give their opinion within a timeframe. So, she or he can take their own time.

But is this amendment legally maintainable? In my view, it is not. This amendment nullifies the decision of the Supreme Court which has clearly held that the elected government of Delhi can take all decisions within its jurisdiction and execute them without obtaining the concurrence of the LG. In case of a difference of opinion on a matter between the LG and the government, the former should make all efforts to resolve it and only in extreme cases should she or refer the matter to the president for a decision.

The above amendment nullifies this decision of the Supreme Court from the position of taking decisions and executing them without obtaining the concurrence of the LG; being unable to act on its decisions, the state government will now be waiting endlessly for the opinion of the LG thereon. Thus this amendment clearly nullifies the decision of the Supreme Court. The apex court had, in the case of People’s Union for Civil Liberties (2002) held that the legislature has no power to set at naught the decision of the court. It can only change the basis on which the decision has been taken by the court and make a general law.

Setting aside a decision of the court by the legislature amounts to exercising the judicial power of the state which is not the function of the legislature. The Supreme Court had adopted the principles of democracy and balanced federalism as the basis for its decision to give unfettered freedom to the elected government to carry out its decisions. The above amendment Bill while nullifying the decision of the Supreme Court does not attempt to change its basis. On the contrary, as the statement of objects and reasons indicates, the Bill tries to define the responsibilities of the elected government and the LG in line with the constitutional scheme of governance of the NCT of Delhi. So, the Bill does not change the basis of the decision of the Supreme Court but in effect nullifies the decision. Parliament has no power to nullify the Supreme Court’s decision without changing the basis of it as it is the judicial function of the state. So, this amendment is clearly invalid.

Also read: Centre Introduces Bill to Define Role, Powers of Delhi LG in Lok Sabha

The above amendment is invalid for another reason too. The Government of National Capital Territory of Delhi Act, 1991 was enacted by parliament as a legislative measure to give effect to the provisions contained in Article 239AA. It is a supplemental law and is intended to deal with incidental matters. As a supplemental legislation, it cannot travel beyond the provisions contained in Article 239AA. Clause (4) of this Article says that the LG will act on the aid and advice of the council of ministers which means he can act only on the aid and advice of the council of ministers except in respect of the excluded items. The Supreme Court has settled the law in this matter by declaring that the state government can take decisions and execute them without taking the concurrence of the LG.

Supreme Court of India. Photo: Flickr

The proposed amendments, which require the government to obtain the opinion of the LG before action is taken, do not give effect to clause (4) and are neither incidental nor consequential. A legislative proposal cannot be incidental or consequential if the effect of it is against the parent law or constitution. The above amendment thus violates Article 239AA (7) and is therefore invalid.

Another proposed amendment that needs to be examined is the one that defines ‘government’ as ‘lieutenant governor’. It says that in all the laws to be made by the assembly, the “government” shall mean the “lieutenant governor”. One is at a loss to understand why such an amendment has been proposed. Legislative proposals are brought before the assembly by the elected government. When it is passed by the assembly, it is the duty of the government to enforce it because it is responsible to the legislature.

The LG is not a part of the assembly and is not responsible to the assembly. If the LG is the government and not the elected government, he is not bound to act in accordance with the decisions of the assembly. It will be a negation of the content of clause (4) of Article 239AA.

Further, Article 239AB provides for president’s rule in Delhi when the administration of the territory cannot be carried on in accordance with the provisions of Article 239AA. President’s rule is imposed on a report from the LG. If the LG is the government, will she or he have to make a report against themselves? It is obvious that Article 239AA recognises the well-established constitutional position that the elected government is the real government and the governor or LG is only a constitutional head. So this amendment is against Article 239AA and is thus invalid.

Now, the consequences of the new amendments can be summarised as follows:

  1. The committees of the Delhi assembly including the Public Accounts Committee, the Public Undertaking Committee etc. will cease to exist as the rules under which they are set up will become void because these committees scrutinise, inquire into or investigate the decisions of the government.
  2. The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
  3. The elected government of Delhi will wait endlessly for the LG’s opinion without being able to execute their decision. So, the decisions of the cabinet or of the ministers will mostly remain on paper only. Thus, the government will become non-functional.

In sum, the proposed amendments violate the basic structure of the constitution, violate specific articles of the constitution and violate the privileges of the Delhi assembly. It cannot stand judicial scrutiny.

P.D.T. Achary is a former secretary general of the Lok Sabha.