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Tuesday, April 13, 2021

Explained: Centre versus state in Delhi – what is the latest issue?

Bill introduced in Lok Sabha says 'government' in Delhi shall mean the Lt-Governor. What does it mean for the elected government, and how does this interpretation compare with the 2018 Supreme Court ruling?

Written by Sourav Roy Barman , Mallica Joshi , Edited by Explained Desk | New Delhi |
Updated: March 17, 2021 12:54:51 pm
National Capital Territory of Delhi (Amendment) Bill 2021, Lieutenant Governor, bill on LG powers delhi, lok saba NCT bill, sisodia on NCT bill, kejriwal on NCT bill, delhi news, indian expressNew Bill has revived old debate over the distribution of powers between the Delhi CM and the L-G. Express (Archive Photo)

The Centre on Monday introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 in Lok Sabha, reviving the dispute on the distribution of powers between the elected government and the Lieutenant Governor (L-G).

The issue, which was at the heart of the ruling AAP’s frequent run-ins with the BJP-led Centre during much of its first term, was taken up by a Constitution Bench of the Supreme Court, which tilted the scales in favour of the elected government through its July 4, 2018 verdict.

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Taking to Twitter, Delhi Chief Minister Arvind Kejriwal said the Bill, which “seeks to drastically curtail powers of the elected government”, is “against” the Supreme Court judgment.

What does the Bill say?

In the “statement of objects and reasons” section, the Centre claims that the amendment Bill seeks to give effect to the Supreme Court’s interpretation and that it “further defines” the responsibilities of the elected government and the Lt Governor in line with the Constitutional scheme. Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G. This, essentially, gives effect to former L-G Najeeb Jung’s 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”. The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

What purpose does the 1991 Act serve?

Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution. The GNCTD Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital. For all practical purposes, the GNCTD Act outlines the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the Chief Minister with respect to the need to furnish information to the L-G.

What did the Constitution Bench say?

In its 2018 verdict, the five-judge Bench had held that the L-G’s concurrence is not required on issues other than police, public order and land. It had added that decisions of the Council of Ministers will, however, have to be communicated to the L-G. “It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution,” the court had ruled. The L-G was bound by the aid and advice if the council of ministers, it had said.

The Bench of then Chief Justice of India Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, in three separate yet concurring orders, had said: “The status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”. It had also pointed out that the elected government must keep in mind that Delhi is not a state.

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What will change if the amendments are cleared by Parliament?

Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision. It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision. But the amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.

The Bill seeks to add a provision in the original GNCTD Act, 1991, barring the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions. This assumes significance as the 70-member Assembly, where the AAP has as many as 62 MLAs, has multiple committees examining matters ranging from riots to environment.

Does the L-G enjoy no discretionary power under the current arrangement?

The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA(4). The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the Supreme Court verdict to keep the L-G in the dark about its decisions as that would prevent him from taking informed decisions on whether to invoke Article 239AA(4) or not. But the SC had also categorically pointed out that the L-G “should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President”.

What are the state government’s fears?

For 2015 to 2018, the AAP government was engaged in a constant battle with the Centre over policy decisions and the powers of the L-G vis-à-vis the elected government. The Supreme Court judgment gave it a freer hand in terms of policy decisions.

Government insiders have maintained that it was because of the judgment that the government was able to clear policy decisions like giving free power to those using under 200 units, free bus riders for women and doorstep delivery of ration.

The amendments will have far-reaching implications — beyond just the AAP-vs-BJP tussle. By making it mandatory for the elected government to route all its files through the L-G, the amendments will essentially take away the government’s autonomy and the dream for full statehood for the state, which each political party — BJP, Congress and AAP have promised the electorate at various times. In 1993, BJP’s then Chief Minister Madan Lal Khurana too had raised the issue with how few powers the elected government in Delhi had.

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