GNCTD (Amendment) Act 2021

The GNCT (Amendment) Bill which has amended the GNCTD Act 1991, after The President gave his assent on 28th March 2021, it has been a controversial topic for the month of April and May because it gives primacy to the Lieutenant Governor (L-G) over the elected government in the city.

Background To The Delhi Governance Structure

• The 69th Constitutional Amendment Act of 1991 conferred the Union Territory of Delhi with a special status, and redesignated it as the ‘National Capital Territory of Delhi’ and designated its administrator as the Lieutenant Governor (LG
• This act provided for a fully elected assembly 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. However, the laws of Parliament prevail over those made by the Delhi Assembly.
• It also governs the city or local governments in the area as per the 74th Constitutional Amendment Act. (This amendment introduced a new Part IXA of the constitution which deals with Municipalities)
• It also 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, it shall be referred to the President by the LG for his/her decision and pending such decision, the LG can take any action on the matter as he/she deems appropriate.

Relevant Case
Government of NCT of Delhi v. UOI [1]

• In April 2015, the Delhi lieutenant governor (LG) Najeeb Jung said it was not mandatory for him to send files regarding police, public order and land: his reserved subjects-
  To the chief minister's office. Jung was backed by the Ministry of Home Affairs in May 2015 which through a government notification said the LG had the final decision on matters related to police, public order, land and services, adding that the Delhi Anti-Corruption Branch (ACB) could not investigate central government employee
• Government of Delhi constituted a commission to investigate into CNG fitness scam allegation matter and said was overturned by Home Ministry by saying that the government does not have the power to set up a commission. Therefore, declared it to be void.
• The LG stayed the decision of the Delhi government to increase circle rates on agriculture land.
• All these continuous events led to the contradiction between the LG and the CM.
• The case was filed as an appeal to an August 2016 verdict of the Delhi High Court that ruled that the lieutenant governor of Delhi exercised 'complete control of all matters regarding National Capital Territory (NCT) of Delhi

Issue:
Should Delhi be treated like a Union Territory with the Lt. Governor as its administrative head or as a Special State where the Lt. Governor is bound by the advice of the Chief Minister?

• The Supreme Court held that the lieutenant governor of Delhi had no independent decision-making powers and was bound to follow the 'aid and advice' of the Delhi chief-minister-headed council of ministers of the Government of Delhi on all matters except those pertaining to police, public order and land.
   

About The GNCTD Amendment Bill

• The Government of National Capital Territory (GNCTD) Amendment Act, 2021 has come into force after being passed by the Lok Sabha on 22.03.2021, by the Rajya Sabha on 24.03.2021, and after the assent of the President of India on 28.03.2021
• The Amendment Act has the effect of amending Sections 21, 24, 33 and 44 of the Act.
• The objective of the Amendment Act is to make it more relevant to the needs of the Capital; further define the responsibilities of the elected Government and the Lt. Governor (LG); and, create a harmonious relationship between the Legislature and the Executive. 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.[2]

Amendments

1. The law gives sweeping powers to the Lieutenant Governor of Delhi by declaring him to be the Government of Delhi
    
2. It also provides that the opinion of the LG 'shall be obtained' on all such matters as may be specified by the LG, before taking any executive action.
    
3. The Bill also prohibits the Legislative Assembly from making any rule to enable itself or its committees to:
   
   1. consider the matters of day-to-day administration of the NCT of Delhi and
   2. conduct an inquiry in relation to administrative decisions.
      Further, any provision in force having the above said effect will be void.
       
4. It provides that the Rules made by the Delhi Legislative Assembly to regulate the procedure and conduct of business in the Assembly must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.

Constitutionality Of The GNCTD Act

• First of all, it violates the basic structure of the constitution which was outlined in the landmark case of Keshavnanda Bharati v State of Kerala [3]. In this judgment, a 13-judge Constitution bench of the court had held the Parliament cannot use its powers to militate against the basic elements or fundamental features of the Constitution. Some of the basic elements violated in this act are:
  
  1. Republican and Democratic form of Government
  2. Separation of powers between the legislature, the executive & the judiciary
  3. Federal Character of the Constitution.
      
• The 1991 Act can be understood to be a legislation supplemental to Article 239AA, and cannot go beyond what is contained in the latter. This is as per a settled principle of law that a legislative proposal cannot be incidental or consequential if the effect of it is against the parent law or constitution. This was articulated by a division bench of the Supreme Court in its judgment in the case of Supreme Court Welfare Association v. Union of India.
   
• The said act illegitimately overrules the judgement given in Govt. Of NCT of Delhi v. UOI [1] .The rationale given behind the grant of special status to the NCT of Delhi in the constitutional scheme in this case was:
  The real purpose behind the Constitution 69th Amendment Act, as we believe, is to establish a democratic setup and representative form 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.
  
  For paving the way to realise this real purpose, it is necessary that we give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of our Constitution are reinforced in NCT of Delhi in their truest sense.”
  
  The Court also said that the status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense. It had also pointed out that the elected government must keep in mind that Delhi is not a state.
   
• The Parliament cannot overturn a Supreme Court decision:
  without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the legislature cannot trench on the judicial power vested in the Courts.
  It was held in the case People’s Union for Civil Liberties v. Union of India [4].However, the act nullifies the ruling given in the Govt of NCT Delhi v. UOI without altering its basis.

Citations:

1. (2018) 8 SCC 501
2. pib.gov.in/PressReleaseFramePage
3. (1973) 4 SCC 225; AIR 1973 SC 1461
4. AIR 1997 SC 568
   
   Award Winning Article Is Written By: Mr.Ayush Khare

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