The Government of National Capital Territory of Delhi (Amendment) Bill, 2021, comes as a fresh event in a long struggle for supremacy in administration. Amid major uproar, Parliament passed the Amendment Bill. The President has given consent to the Bill too.
The Act sought to give the Lieutenant Governor of NCT of Delhi (L-G) primacy over the elected Delhi government. Broadly, it provides that the opinion of the L-G “shall be obtained” on all such matters as may be specified by the L-G, before taking any executive action on decisions of the Council of Ministers of the Delhi government; L-G shall be declared as “Government of Delhi”. Essentially, the L-G will become the real head of administration over the elected government.
It is interesting to note how the distribution of power between the Central government through the L-G and the Delhi government becomes a core concern each time. This underlines the issue of federalism, that is, distribution and division of power, for which the Constitution has sought to provide a fine balance. The courts have adjudicated federative disputes from time to time and the parties – governments - have called for an interpretation more favourable to them and made attempts (like amendments) in that regard. This is precisely what is being sought to be done under the Amendment Act.
Delhi, a Union Territory, is not fully under the control of the Central government like other Union Territories. Parliament vide the Constitution (Sixty-ninth Amendment) Act, 1991, inserted Articles 239AA and 239AB and conferred special status on Delhi, whereby Delhi was to have its own Legislative Assembly.
The Legislative Assembly was empowered to legislate on every subject matter in the State List except on subjects, broadly, of public order, police, and land. Thus, Delhi is a hybrid of state and UT and is a sui generis territory, that is, a class in itself. This was also explained and underlined by courts at various instances, in the New Delhi Municipal Corporation Case, and most recently in 2018 by a five-judge bench of the Supreme Court in the Government of NCT of Delhi v Union of India.
The constitutional history of the NCT of Delhi is traceable to the Government of Part C States Act, 1951; the Government of Union Territories Act, 1963; the Delhi Administration Act, 1966; the Balakrishnan case; and the Constitution (sixty-ninth Amendment) Act, 1991. Notably, the powers conferred on the Legislative Assembly of the NCT of Delhi and consequently on the Government of NCT of Delhi is a creature of the Constitution directly as opposed to previous regimes whereby it was statutory. Any alteration of these powers would require a change in the constitutional scheme following the procedure laid down by for such alteration.
The changes introduced vide the Amendment Bill seek to make L-G the real head of NCT of Delhi. It seeks to make it mandatory for the Council of Ministers of Delhi to consult L-G before their exercise of executive power. This in actual terms would mean that all actions of the elected government of Delhi have to be approved by the L-G. In case L-G has a difference of opinion, he/she can refer the matter to the President and stall any action till then.
In contravention of Article 239AA? What is interesting is that the changes are sought to be introduced to the Government of NCT of Delhi Act, 1991 and not Article 239AA per se. Article 239AA is the main source of division and distribution of powers for the Council of Ministers headed by the Chief Minister vis-à-vis the L-G.
In 2018, a five-judge bench of the Supreme Court in Government of NCT of Delhi v Union of India had categorically held that the NCT was to function like other state governments in every matter and should only inform the L-G of their action who cannot disagree except on subjects, broadly, of public order, police, and land for which the prior permission of L-G is required.
Constitutional scheme
The basis of this decision by the Supreme Court was sui generis position of Delhi as a hybrid between state and Union Territories. The Supreme Court interpreted the constitutional scheme, particularly under Article 239AA, on the notions of representative democracy to empower govt of NCT of Delhi as it stands today.
The Amendment Act does not bring a change to either Article 239AA of the Constitution or the constitutional scheme in general. It seeks to bring about changes to the 1991 Act, which is to sit in direct contrast with Article 239AA of the Constitution. A statutory law which is in contravention of a constitutional provision and seeks to circumvent it, is no good law and is unconstitutional.
Federalism forms a part of the basic structure of our Constitution. Any attempt to change the federative scheme in relation to territories must strictly follow the constitutional procedure laid down. Any casual approach or indirect method to change such distribution and division of power is a colourable exercise of power and undermines the representative form of government.
The Amendment Act seeks to render the elected government toothless, which does not bode well in a constitutional democracy, where the will of people is paramount. The argument certainly is not that the changes sought cannot be introduced at all but it is that the changes cannot be introduced in the particular manner it has been introduced.
So long as the constitutional scheme providing for sui generis status to NCT of Delhi is constitutionally intact, a representative form of democracy, where the elected government has primacy, must be treated as paramount. Any attempt to change this without following the requisite procedure is unconstitutional.