The Government of National Capital Territory of Delhi Amendment Act, 2021: Against the principles of the Constitution

On 28^th March, 2021 the President of India gave his assent to the Government of National Capital Territory Amendment Act, 2021 which seeks to enhance the power of the Lt. Governor and limits the power of the elected Government’s power in Delhi. The main aim of this blog is to provide a holistic analysis as to how this Act is against the very cherished principles of the Constitution i.e. “Popular will of the people”, Constitutionalism, Federal nature of the Constitution and Constitutional Morality and how this Act tends to overshadow the ratio of law decided by the Supreme Court in the case of Government of NCT of Delhi v. UOI[i]

A BRIEF ABOUT THE ACT

The NCT Amendment Act, 2021 brings drastic changes with regards to the powers exercised by the Lt. Governor. The new law amends Sections 21, 24, 33 and 44 of the GNCTD Act, 1991.[ii] The objective of the 1991 Act as highlighted by the apex Court in the Government of NCT of Delhi case[iii]stated that, “The said Act will promote harmonious relations between the Legislature and the Executive, and further defines the duties of the elected Government and the Lt. Governor, in consonance with the Constitutional scheme of governance of National Capital Territory of Delhi”. However, the 2021 Amendment Act completely reverses the situation.

The GNCTD (Amendment) Act, 2021 clarifies that the ‘Government’ in Delhi would mean the ‘Lieutenant Governor’. After a bill has been passed by the Legislative Assembly, it shall be presented to the Lt. Governor, who would decide whether to give his or her assent to the bill or to save it for the consideration of the President, further the Delhi Government is required to seek the opinion of the Lt. Governor after the passage of a bill before considering any executive action. The Lt. Governor, under the amendment has been ‘necessarily granted an opportunity’ to advice the Delhi Cabinet before the implementation of any law and restricts the Assembly or the Committees from conducting inquiries related to administrative relations or the matters concerning the day-to-day administration of the Assembly.

Violation of the popular will of the people

In a democratic republic, the people who are the sovereign elect their law-making representatives for enacting laws and shaping policies which are reflective of the popular will of the people. The trite saying that democracy is “for the people, of the people and by the people” has to be remembered for ever. In a democratic Republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government and this popular will defines the ‘Spirit’ of the Constitution.

However, the present Act seems to negate this ‘Spirit’ of the Constitution. The present act minimizes the role of the elected Government and enhances the power of the Lt. Governor. By minimizing the power of the elected Government, the principle of the Representative Governance in a Republican form of democracy wherein the people of a nation elect and chose their representatives has been violated because now the power is vested with an authority who does not represent the popular will of the people and such act violates the principle of rule of law, the apex court in the case of State of Bihar v. Bal Mukund Shah[iv]held that:

“Besides providing a quasi-federal system in the country and envisaging the scheme for distribution of Legislative powers between the State and the Centre, it emphasizes the establishment of Rule of Law. The form of Government ideated under a Parliamentary system of democracy is a representative democracy in which the citizens of the country are entitled to exercise their sovereignty.”Therefore, the present act undoubtedly lexographise the sovereignty of the people.

The ultra democratic conception of sovereignty is, premised on the very concept of the “will of the people” the parliamentary form of democracy as envisaged by the Constitution has its very base the power bestowed upon people to vote and make the Legislature accountable for their functioning to the people. If the Legislature fails to transform the popular will of the people into policies and laws the democracy like ours have the power to elect new representatives by exercise of their vote. So, the question which now arises whether the elected government of the NCT of Delhi failed to perform its duties? The answer is no.

The present act appears to be a political whip on the Preamble of our Constitution, as the Preamble tells us, the document was adopted by “We the People of India”. It is through this expression the sovereignty of people is defined and when the people have elected their representative then in which democracy does the Government possess the power to overshadow the “popular will of the people”? Therefore, the authors are of the firm viewpoint that this act is nothing but a finesse to jeopardized the power of the elected Government.

Against the principle of Constitutionalism

The present Act seems to bypass the established norms and conventions of the decision-making policy. When the terms Constitutionalism and Constitutional Governance are read together they defines the fundamental polity of law which effectively controls the exercise of political power. However, the present act defiles this spirit of the Constitution, by vesting the power of law making into the hand of the authority whose job is to aid and advice the Council of Ministers.

The Constitution distributes the powers in such a manner that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the State.[v] However, in the present Act there is a disruption of the powers because it is against the will of the State and the will of the State is the will of the people. The power given to the Lt. Governor under proviso to Article 239 AA (4) contains the rule of exception and should not be treated as a general norm. The Lt. Governor must act with Constitutional objectivity keeping in mind the high degree of Constitutional Trust entrusted in him while exercising the special power consecrated upon him. As per the 1991 Act and Rules of Business, Lt. Governor has to be apprised of every decision taken by the Council of Ministers but he cannot the change the decision because this restriction has been conferred upon him by the Constitution and he should protect the interest of NCT of Delhi and the principles of Constitutionalism but sadly the act mandates that the elected Government must take the Lt. Governor’s opinion before taking any Executive action. In a similar manner according to Section 2(3) of the Amendment Act, 2021 it specifies that the Government of Delhi will mean the Lt. Governor and not only this it goes one step ahead and highlights that Lt. Governor does not have to act on the advice of the council of ministers.

According, to proviso to Section 4 (b) of the Act the legislative assembly or its committees can no longer make rules to empower itself or its committees to consider the issue of everyday administration or conduct inquiries according to administrative decisions. Making the law retrospective, the Act provides that such framed law will be declared void. Thus, this act practically takes away all the powers of the elected Government.Within a Federal Constitution like ours the tasks of the Government are divided into between the Center and the State and this division of powers is one of the aspects of the Constitutionalism which must not be overreached by any act of the Parliament. Therefore, the present act is against the principle of Constitutionalism.

Against the Federal nature of the Constitution

In a democratic nation any law must be in accordance with the principles of Constitutional objectivity and symphonious with the spirit of the Constitution[vi] and balance of federalism is one such spirit of the Constitution and Article 239-AA is a classic example of the hallmark of federalism in our Constitution which reserves the Legislative primacy of Parliament in certain limited areas but there is no such corresponding provision in the Constitution which reserves the Executive power of the Central Government.The essential feature of a federation is that in it the two types of governments- the Central and the State should be both independent in their spheres and coordinate.However, The GNCTD (Amendment) Act, 2021 has changed this course for the National Capital Territory of Delhi. Not only has this act undermined the powers of the elected Government of Delhi in absolute terms, but has also upturns the Supreme Court’s landmark judgment in 2018, which upheld the primacy of the elected legislature in matters of governance. The Constitution Bench[vii]very well held that the Lt. Governor was to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor was permitted to exercise his own discretion.The court also held that the “status of the Lt. Governor of Delhi is not akin to that of a Governor of a State, rather his position remains of an administrator, in a limited sense, working with the designation of Lieutenant Governor” and that the elected government must keep in mind that Delhi is not a State.However, the new law vests enormous powers in the hands of the Lt. Governor which is abusive of the doctrine of pith and substance and crumbles the solid foundations of federalism and democracy on which our country has thrived.[viii]

Against Constitutional Morality

Another aspect on which this act fails to pass the Constitutionality test is that this act is against the concept of Constitutional morality. Constitutional morality in simpler terms means strict adherence to the established principles and norms of the Constitution. In the case of Krishnamoorthy v. Sivakumar[ix]held that“Constitutional morality acts as an instrument which provides a proper check and balance against the infirmities on the part of the Governmental agencies and colorable activities which affects the democratic nature of polity”.

The present act is one such colorable activity which mars the very concept of Constitutional morality. All the above discussed principles are the essential elements of the Constitutional morality and with the implementation of the act a hindrance will be created in the proper administration of the NCT of Delhi. Another major aspect of the Constitutional morality is that it prevents Government from turning tyrannical in the instant case the NCT of Delhi occupies a special status and the elected Government is vested with the power to take decisions in the proper administration of the Government whereas the Lt. Governor only act as an advisory authority. However, the present act reverses the situation and now the elected Government has been reduced to a mere advisory body thus establishing the tyranny of the Central Government. An act which can erode the popular will of the people, which can mar the federal nature of the Constitution and which can defile the principle of Constitutionalism. Such act can never justify the principle of Constitutional morality.

Against the ratio of law decided in Government of NCT Delhi v. UOI

An ingrained reading of Article 239AA (4) highlights that the role of the Lt. Governor is an advisory one and only in the case of difference of opinion he can refer the matter to the Lt. Governor.The Article further highlights that the Lt. Governor is bound by the aid and advice of the Council of Ministers and the same was highlighted by the Constitutional bench that “Article 239AA (4) provides Constitutional status to the Council of Ministers, whose duty is to aid and advice to the Lt. Governor on matters which are co-extensive with the Legislative powers.” But the present act provides the provision of ‘prior concurrence’ of the Lt. Governor which is undemocratic in nature and very much against this verdict.

As per Article 239AA(4), the Lieutenant Governor must act on the aid and advice of the Council of Ministers in respect of matters which fall within the legislative competence of the Legislative Assembly, or in which he is not required by or under any law to act in his/her discretion or exercise his/her judicial or quasi-judicial functions. Therefore, the President through the Lieutenant Governor shall not administer the NCT of Delhi in respect of matters over which the Legislative Assembly of the NCT has authority to make laws.[x]

The Lieutenant Governor occupies aposition which is hybrid in nature, in simpler terms, matters in which the Legislative competence is vested with the Legislative Assembly of Delhi, he would act on the aid and advice of the Cabinet. Article 239-AA defines a well-established Legislature for Delhi which is completely different from the body constituted by Parliament under Article 239-A to function as a Legislature for a Union Territory. There is a distinction between a body constituted by Parliament and the legislature created by the Constitution.[xi]Under Article 239-AA, a Cabinet form of Government has been put in place for Delhi wherein the Council of Ministers along with the Chief Minister are collectively responsible to the people of Delhi and consequently the Lieutenant Governor is bound by the aid and advice of the Council of Minister headed by the Chief Minister.[xii] Therefore, the present act clearly subdues the ration of law decided by the Constitution bench in the instant case.

CONCLUSION

The present amendment act can be very well compared to the situation which once arose in Russia in 1991 when the elected President of Russia in the Soviet Union's newly minted democracy Boris Yeltsin challenged Mikhail Gorbachev's right to rule Moscow as President of the Soviet Union, there has been two tiers of the same Government in the annals of modern nation States.

Though under Article 239 the Union Territories are administered by the President acting through an administrator to be appointed by him. But this does not mean that the Union Territories agglutinates with the Central Government. They are centrally administered but they retain their independent identity.[xiii]The Lt. Governor can only exercise his powers only on those subjects which he is authorised to do else he is bound by the aid and advice of the Council of Ministers headed by the Chief Minister. Since NCT of Delhi is being governed by a democratically elected Government. The defence taken by the Center that the present Act is Constitutionally valid under Article 239 i.e. administration of the Union Territories does not hold any grounds because the territory of Delhi as a part “C” State under the First Schedule to the Constitution was a separate and distinct constitutional entity as from that of a Chief Commissioner’s province under the Government of India Act, 1935.[xiv] By virtue of the Constitution (69th Amendment) Act, 1991, under Article 239-AA Delhi has been given a special status and this status cannot be overshadowed by any act of the Parliament.Therefore, the authors are of the firm viewpoint that this act is a classic example of political animosity which defiles the very spirit of the Constitution.

(Neha Bhandari & Shreshth Srivastava are 3rd year law student of School of Law, University of Petroleum and Energy Studies, Dehradun)

---

[i] (2018) 8 SCC 501.

[ii] The Government of National Capital Territory of Delhi (Amendment) Act, 2021, No. 55, §§ 21, 24, 33, 44 (2021).

[iii]Supra note 1.

[iv] (2000) 4 SCC 640.

[v]See id.

[vi]See id.

[vii]Supra note 1.

[viii]See id.

[ix] (2015) 3 SCC 467.

[x] Anil Kumar v GNCT of Delhi, 2015 (4) ADR 758.

[xi]Shiv Kirpal Singh v. V.V. Giri, (1970) 2 SCC 567.

[xii]UNR Rao v. Indira Gandhi, (1971) 2 SCC 63.

[xiii] Chandigarh Admn. v. Surinder Kumar, (2004) 1 SCC 530.

[xiv]Express Newspapers Pvt Ltd v UOI, AIR 1986 SC 872.