NATIONAL CAPITAL TERRITORY OF DELHI ISSUE

CONTEXT:

• The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was passed in Lok Sabha and Rajya Sabha.
• The Bill amends the Government of National Capital Territory of Delhi Act, 1991.
• 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 Lieutenant Governor.

THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (AMENDMENT) BILL, 2021 FEATURES:

• Restriction on laws passed by the Assembly: The Bill provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (LG).
• Rules of Procedure of the Assembly: 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.
• Inquiry by the Assembly into administrative decisions: The Bill 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 and (ii) conduct any inquiry in relation to administrative decisions. Further, the Bill provides that all such rules made before its enactment will be void.
• Assent to Bills: The Act requires the LG to reserve certain Bills passed by the Legislative Assembly for the consideration of the President. These Bills are those: (i) which may diminish the powers of the High Court of Delhi, (ii) which the President may direct to be reserved, (iii) dealing with the salaries and allowances of the Speaker, Deputy Speaker, and members of the Assembly and the Ministers, or (iv) relating to official languages of the Assembly or the NCT of Delhi.  The Bill requires the LG to also reserve those Bills for the President which incidentally cover any of the matters outside the purview of the powers of the Legislative Assembly.
• LG’s opinion for executive actions: The Act specifies that all executive action by the government, whether taken on the advice of the Ministers or otherwise, must be taken in the name of the LG. The Bill adds that on certain matters, as specified by the LG, his opinion must be obtained before taking any executive action on the decisions of the Minister/ Council of Ministers. 

LEGAL CONTROVERSY BETWEEN LG & DELHI GOVERNMENT

• Due to the co-existence of Article 239 and 239AA, there is a jurisdictional conflict between the government of NCT and the Union Government and its representative, the Lieutenant Governor.
• According to the Union government, New Delhi being a Union Territory Article 239 empowers the Lieutenant Governor to act independently of his Council of Ministers.
• However, the state government of Delhi held that the Article 239AA of the Constitution bestows special status to Delhi of having its own legislatively elected government.
• This creates a tussle around the administrative powers of the LG and state government of NCT of Delhi.

HIGHLIGHTS OF THE 2018 JUDGEMENT

• Administration of Union Territory under Article 239(1) is different from Article 239AA which provides for an elected Legislature.
• The court held that Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the state government headed by the Chief Minister.
• It also held that the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly.
• LG to act on 'aid and advice' of the Council of Ministers
• The court held that for establishing a democratic and representative form of government for NCT of Delhi, Government of Delhi that enjoys the confidence of the people of Delhi should have the functional autonomy to legislate for the NCT of Delhi.
• Hence, through the judgement, the Supreme Court has settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.

HISTORICAL BACKGROUND

• When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States.
• The last two were administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
• It was felt that if Delhi became a part of any constituent State of the Union, that State would sooner or later acquire a predominant position in relation to other States.
• The need for keeping the National Capital under the control of the Union Government was deemed to be vital in the national interest.
• It was felt that if Delhi became a full State, the administration of the National Capital would be divided into rigid compartments of the State field and Union field.
• Hence, Delhi was initially made a Part C State.
• In 1951, a Legislative Assembly was created with an elected Chief Minister.
• In 1956, when the Constitution of India was amended to implement the provisions of the States Reorganisation Act, only two categories, namely, States and Union Territories remained in the Indian Union.
• Delhi then became a Union Territory to be administered by an Administrator appointed by the President.
• Ten years later, the Delhi Administration Act, 1966 provided for a limited representative Government in Delhi through a Metropolitan Council comprising 56 elected Members and five nominated Members.
• In 1989, the Balakrishnan Committee recommended that Delhi should continue to be a Union Territory but that there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers.
• Based on this report, the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed.

ARTICLE 239 AA AND 239AB

• The 69th Amendment Act, 1992 has added two new Articles 239AA and 239AB under which the Union Territory of Delhi has been given a special status.
• 239AA provides that the Union Territory of Delhi shall now be called the National Capital Territory of Delhi and its administrator shall be known as Lt. Governor.
• It also creates a legislative assembly for Delhi which can make laws on subjects under the State List and Concurrent List except on these matters: public order, land, and police.
• Article 239AB provides that the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article. This provision resembles Art.356 (President’s Rule)
• It also provides for a Council of Ministers for Delhi consisting of not more than 10% of the total number of members in the assembly.

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