On April 27, 2021, after receiving the assent of the Lok Sabha, the government of India passed the Government of National Capital Territory of Delhi (Amendment) Act.
It revived the debate regarding the distribution of power between the elected government and the lieutenant-governor (L-G) in Delhi, which is technically a union territory apart from being our country’s capital.
This issue has been at the heart of the constant run-ins that have taken place between the Aam Aadmi Party (AAP) and the Bhartiya Janta Party (BJP).
The Supreme Court Intervenes
It is not the first time that the centre has made an attempt to stifle the of power of Delhi’s elected government. In 2016, differences arose between the L-G and the Delhi government with respect to powers, duties and governance, following which the matter was taken to court by the government of Delhi.
The constitutional bench of the Supreme Court (SC) had then held that although the Council of Ministers shall inform all its decisions to the L-G, but that would not mean that the concurrence of the L-G was mandatory.
In 2018, the SC had to intervene again as a similar dispute arose. A five-judge constitutional bench directed that the L-G has no independent power to take decisions and is bound by the elected government’s advice.
What Is The GNCTD Amendment About?
The Act provides a framework for the functioning 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 L-G.
The bill provides that the term “government” referred to in any law made by the legislative assembly will imply L-G.
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.
The Act prohibits the legislative assembly from making any rule to enable itself or its committees to:
(i) Consider the matters of day-to-day administration of the NCT of Delhi.
(ii) Conduct any inquiry in relation to administrative decisions. Further, the bill provides that all such rules made before its enactment will be void.
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:
(i) May diminish the powers of the High Court of Delhi.
(ii) Which the President may direct to be reserved.
(iii) Deal with the salaries and allowances of the speaker, deputy speaker, and members of the assembly and the ministers, or
(iv) Are related to the official languages of the assembly or the NCT of Delhi.
The Bill requires the LG to also reserve these bills for the President, which incidentally covers any of the matters “outside the purview of the powers of the legislative assembly.”
The Impact On Federalism And Democracy
As citizens of India, the right to vote has been enshrined as a fundamental rights in our constitution. It is a basic right that enables us to choose who we want to represent us and redress problems that plague our respective areas.
It is a right which is a mark of freedom and independent choice in a democratic country… A country our prime minister recently called the ‘mother of democracies’ at the 76th UN General Assembly.
I, who became the age to vote last year, give it a lot of importance—the chance to elect who I want to represent my locality. For me, the Act right highlights my chance to initiate change in the time of need.
Yet, here we have an amendment which basically nullifies that right. It dismantles the democratic system of representation. By terming that the Delhi government is supposed to be synonymous with the L-G, the centre is centralising power that it constitutionally has no right over.
My elected representative will have no power to enforce change. This entire process in turn affects federalism—a word which is a part of the preamble of the Indian constitution… A principle which is considered to be a part of the basic structure.
The basic structure doctrine is a common law legal doctrine which states that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature.
Why Is Challenging The Amendment Important?
Initially, when the amendment was passed, many were surprised to see no adverse reply or reaction from the Delhi government. However, in early September, a case was finally filed in the SC against the amendment.
The stance taken by them is that the piece of legislation is disenfranchising, and violates the principle of federalism… That it impermissibly encroaches on the scope of the Delhi legislative assembly’s core legislative functions.
It interferes with the power of the assembly to frame its own rules of business or to hold the executive to account, a core function of any legislature.
The Road That Lies Ahead Of Us
We have reached an unwanted deadlock here between a passed act and a state government yearning to gain its autonomy back. A point where the centre claims that the act will “help” the Delhi government govern better.
While the latter claims that this act disrupts important constitutional values… Values which history considers to be the cornerstone of governance in the union of India.
It’s imperative that the judiciary looks beyond the centre’s claims. Even though they maintain that the amendment will not take away the Delhi government’s executive and legislative powers, the language of the Act does not help in interpreting it in any other way.
There is a battle to be fought between the centre and the state—a battle which will clarify the direction in which democracy will move in the capital. To provide an elected government symbolic, executive power cannot be a move that the centre can indulge in.
The amendment needs to be under heavy judicial scrutiny. Maybe, that will yield an effective result… A result where we retain the true spirit of democracy—by the people, of the people and for the people.
Featured image is for representational purposes only.
Note: The author is part of the current batch of the Writer’s Training Program.