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Monday, July 04, 2022

A legislative sword to cut off Delhi government’s executive arm

Amendments to NCT Act by Centre empowering the LG in Delhi are against the spirit of cooperative federalism

March 25, 2021 7:37:40 pm
Prosecution sanction in JNU sedition case takes centrestage on Delhi assembly day 1Delhi Chief Minister Arvind Kejriwal and Lt-Governor Anil Baijal (Express photo: Praveen Khanna)

Written by Saahas Arora

The long-standing friction between the BJP at the Centre and the AAP government in Delhi is likely to get aggravated with the passing and implementation of The Government of National Capital Territory of Delhi (Amendment) Bill, 2021.

The Bill, as envisaged in its Statement of Object and Reasons, contemplates bringing more effectiveness and structure into the Government of National Capital Territory of Delhi Act, 1991, and enhances the role of the Lieutenant Governor in state administration. While the amendment is claimed to be in alignment with the 2018 Supreme Court ruling in NCT of Delhi v. Union of India and Another, it lacks practical legitimacy and suffers from substantial design faults. It seems to be less a facilitator of the LG’s duties and more a legislative sword that amputates the executive arm of the Delhi government.

Inter alia, the Bill seeks to amend Section 44 of the 1991 Act, whereby it adds a proviso in sub-section (2), which mandates that the state government or any other appropriate administrator must seek the opinion of the LG before taking any executive action in pursuance of any decision of the Council of Ministers or, for that fact, any minister. This provision is in blatant contravention of collaborative federalism. By authorising a regime of unwarranted checks and balances and indefinitely elongating the decision-making process by mandating the running of every executive decision through the LG, the Bill strikes at the very heart of the Indian federal mechanism.

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Not only is this legislation bound to fuel the tussle between the central and state government, but it would also make the elected Delhi government’s task more difficult as it would have to seek the opinion of the LG for even routine decisions. The Delhi government, whose powers are already severely circumscribed, will be forced to jump through unwarranted hurdles to govern the megacity. This would, obviously, take a toll on the efficient governance of the National Capital Territory, which requires a government that can act swiftly when needed.

The Bill also runs against the judicial pronouncement of the constitution bench in NCT of Delhi v Union of India and Another. It misinterprets the very judgement it uses to undergird its legislative intent. According to the majority opinion conferred by the five-judge bench led by former CJI Dipak Misra, the LG, who is a nominee and appointee of the President, “should not emerge as an adversary … towards the Council of Ministers in Delhi, rather he should act as a facilitator.” Analysing the Bill in light of this dictum, the LG, will act as a constant barrier instead of a catalyst or facilitator of active executive governance.

While the Statement of Objects and Reasons contemplates the accentuation of harmonious relations between the executive and the legislature, the legislation, on its practical application, will only stir discord between the two wings of the government as the elected representatives may be forced to cross-examine every executive decision, regardless of its merit and urgency, with the supposed nominal head of the Union Territory.

The drafters posit that the 1991 Act lacked clarity in determining what matters were to be proposed or submitted before the LG before issuing an order. While this lacuna is being partially dealt with in the Bill, the red herring here is that it opens another door of ambiguity. Neither does the Bill provide for a subsequent mechanism on how the elected representatives would function if the Lieutenant Governor is not in favour of a particular executive action nor does it state the time-frame within which the LG is authorised to give his opinion.

The Bill was introduced to compel the Delhi government, which had stopped the running of a majority of its executive actions through the Lieutenant Governor using the 2018 judgment as an alibi, to seek his opinion on those matters. However, the dubious and controversial provisions of the Bill accompanied by their ramming through the Parliament is bound to water down the merits of the Bill. Moreover, the putative benefits can, in no capacity, override the underlying conspicuous defects of the bill.

The writer is a legal researcher at Goeman Bind, an international law and public policy research think-tank

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