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The Government of National Capital Territory of Delhi (Amendment) Bill, 2021

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  • Published
    31st Mar, 2021
The Government of National Capital Territory of Delhi (Amendment) Bill, 2021

INTRODUCTION

  • The Government of National Capital Territory of Delhi (Amendment) Bill, 2021(GNCTD) is moved by the Ministry of Home Affairs (MHA) in the Lok Sabha.
  • The bill has been passed by both the houses of the Parliament on March 24th
  • The passed bill expects to give more powers to the lieutenant governor (L-G).
  • The GNCTD (Amendment) Bill, 2021 suggests that 'government'in Delhi shall mean‘Lt-Governor’ and the bill is also trying to demarcate the roles of the office of chief minister and Lt-Governor.

UNDERSTANDING THE BASICS

  • Article 1 of the Constitution categorizes Indian territories in three categories

(a) Territories of the states

(b) Union territories

(c) Territories that may be acquired by the Government of India at any time

Currently, there are 29 states, 8 union territories and no acquired territories.

  • The states are the part of the federal system in India and share the power with the Centre.
  • The union territories, on the otherhand, come under the direct control and administration ofthe Central government. Hence, they are also called as ‘centrally administered territories.
  • ‘The existence of the territories creates conspicuous departure from federalism in India. The Government of India behaves“Unitary”in so far as the relationship between New Delhi and these Central enclaves is concerned.

Reasons behind the UTs formation:

The union territories have been created for a variety of reasons. These arementioned below:

  1. Political and administrative factor—Delhi and Chandigarh.
  2. Cultural distinctiveness—Puducherry, (Dadra and Nagar Haveli, and Daman and Diu).
  3. Strategic significance—Andaman and Nicobar Islands and Lakshadweep, Jammu & Kashmir and Ladakh.
  4. Special treatment and care for the backward and tribal people—Mizoram, Manipur, Tripura and Arunachal Pradesh which later converted in states.

ARTICLES RELATED TO UNION TERRITORIES AT A GLANCE

Article No.

Subject-Matter

239

Administration of Union territories

239A

Creation of local Legislatures or Council of Ministers or both for certain Union territories

239AA

Special provisions with respect to Delhi

239AB

The provision in case of failure of constitutional machinery

239B

Power of administrator to promulgate Ordinances during recess of Legislature

240

Power of President to make regulations for certain Union territories

241

High Courts for Union territories

ADVISORY COMMITTEES OF UNION TERRITORIES

  • Under the Government of India (Allocation of Business) Rules 1961, the Ministry of Home Affairs acts as the nodal ministry for all matters of Union Territories which relate to legislation, services and appointment of Governors and Administrators, finance and budget.
  • All the UTs without legislature, Andaman and Nicobar Islands, Chandigarh, Daman and Diu, Dadra and Nagar Haveli, Lakshadweep and Ladakh have the platform of Home Minister’s Advisory Committee (HMAC / Administrator’s Advisory Committee (AAC).
  • HMAC is chaired by the Union Home Minister and AAC by the Administrator of the concerned UTs.
  • Member of Parliament and the elected members from the local bodies e.g. District Panchayats and Municipal Council of the respective UTs are members of these committees among others.

ADMINISTRATION OF UNION TERRITORIES

  • Articles 239 to 241 in Part VIII of the Constitution deal with the UTs. Even though all the union territories are form the samecategory but there is no uniformity in their administrative system.
  • Union Territories are administered by the President acting through an administrator appointed by him.
  • An administrator of a union territory is as just an agent of the President and not the head of state similar to governor.
  • The President also has power to appoint the governor of a state as the administrator of an adjoining union territory. In that capacity, the governor acts independently of his council of ministers.
  • The Parliament can make laws on any subject of the three lists including the state list, for the union territories.
  • This power of Parliament also extends to Puducherry and Delhi, in-spite of their local legislatures.
  • This means that the legislative power of Parliament for the union territories on subjects of the State List remains unaltered even after establishing a local legislature.
  • But, the legislative assembly of Puducherry has the power to make laws onany subject of the State List and the Concurrent List.
  • In the same manner, the legislative assembly of Delhi can make laws on any subject of the State List (except public order, police and land) and the Concurrent List both.

COMPARING STATES AND UNION TERRITORIES

 

States

 

Union Territories

1.

Their relationship with the Centre is federal.

1.

Their relationship with the Centre is unitary.

2.

They share the distribution of power with the Centre.

2.

They are under the direct control and administration of the Centre.

3.

They have autonomy.

3.

They do not have any autonomy

4.

There is uniformity in their administrative set-up.

4.

There is no uniformity in their administrative set-up.

5.

Their executive head is known as the governor.

5.

Their executive head is known by various designations—administrator or lieutenant governor or chief commissioner.

6.

A governor is a constitutional head of the state.

6.

An administrator is an agent of the president.

7.

Parliament cannot make laws on the subjects of the state list in relation to the states except under extraordinary circumstances.

7.

Parliament can make laws on any subject of the three lists in relation to the union territories.

ADMINISTRATION OF NCT (NATIONAL CAPITAL TERRITORY) OF DELHI

In the current situation, Delhi is divided into 3 levels of governance:

  1. First area comes under the control of elected Central Government via an L-G existing as the administrator
  2. The second area comes under the supervision of elected representatives (MLAs) of Delhi’s Assembly
  3. Third area falls under elected representatives (Mayor & Corporators) of municipal bodies, of which the management and control remains in the hands of Commissioners appointed by the Central Government.

Delhi as Union Territory with a legislative assembly

  • Balakrishnan Committee was constituted in 1987. In 1989, the committee recommended that Delhi should continue to as a Union Territory, however, it should be given with a Legislative Assembly and a Council of Ministers who will be responsible to such Assembly with appropriate powers to deal with the matters of concern to the common man. Based on this report, some acts such as the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed.
    • The Committee also recommended that the arrangements should be incorporated in the constitution to give the National Capital a special status among the Union Territories.
  • Hencethe Constitution (69thAmendment) Act, 1991,Article 239AA and Article 239AB were added to the Constitution to give the constitutional status to National Capital Territory of Delhi.
    • Article 239 provides for Administration of Union Territories
    • Article 239 (1) Union territory shall be administered by the President via an Administrator which should be appointed by the President.
  • Article 239 (2) says that President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is appointed so, he shall exercise his functions as such administrator independently of his Council of Ministers.
  • Article 239A makes provision for the Creation of local Legislatures or Council of Ministers or both for certainUTs.
    • Clause 2 of Article 239A mentions that any law which makes provision for the creation of local legislatures or Council of Ministers or both for certain Union Territories shall not be considered to be an amendment of the Constitution under the Article 368 even though certain provisions of the Constitution are amended.
  • Article 239AA of the Indian Constitution was added through the Constitution (Sixty-ninth Amendment) Act, 1991. It mentions that the Union Territory of Delhi shall be called the National Capital Territory of Delhi and the Administrator appointed under Article 239 shall be designated as the Lieutenant Governor.
    • There shall be a Legislative Assembly for the National Capital Territory (NCT) of Delhi and the seats in such Assembly shall be filled by members elected by the Direct Election from territorial constituencies in the NCT.
  • The Legislative Assembly of Delhi shall have the powers to make laws for the whole or any part of the NCT with respect to any matters enumerated in the State List or in the Concurrent List. However, the Legislative Assembly of Delhi cannot make laws on the following entries under the:

State List -

  1. Entry 1: Public Order;
  2. Entry 2: Police (including railway and village police);
  3. Entry 18: Land, any right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans and colonization.
  • They also cannot legislate on Entries 64, 65 and 66 of State List, so far as they relate to the above entries – 1, 2 and 18.
  • Thus, the government of Delhi does not have all the powers with respect to law-making which are enjoyed by other states. Moreover, NCT is primarily a Union Territory that has a legislative assembly.

Article 239

Article 239AB - Provision in case of the failure of constitutional machinery: If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied-

  1. that a situation has arisen in which the administration of the National Capital Territory cannot be carried according to the provisions of Article 239AA or of any law made in pursuance of that article, OR
  2. that for the adequate administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of Article 239AA for such period and subject to such conditions as may be specified in law: (The Government of Union Territories Act, 1963)-which according to the President is expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.

SPECIAL PROVISIONS in regard to DELHI (69TH AMENDMENT 1991)

  • Redesignated UT of Delhi as a National capital territory and created a legislative assembly with members.
  • Designated the administrator of Delhi as the lieutenant (L-G) governor.
  • Legislative Assembly has power to make laws on matter enumerated in state list (Except matters of Public order, Police & land).
  • The strength of the assembly is fixed at 70 members who are directly elected by the people.
  • The election commission of India conducts elections for the same.
  • Laws of Parliament prevail over the laws made by the Assembly (Except for those laws of Legislative Assemblywhich has been preserved for the consideration of President).
  • The strength of the Council of Minister is fixed at 10% of the total strength of the assembly (seven–one chief minister and six other ministers)
  • Chief Minister is appointed by the President not by the Lt. Governor.
  • In the case of difference of opinion between the Lt. Governor and his ministers, the Lt. Governor is to refer the matter to the president for decision and act according.

What does the GNCTD (amendment) bill, 2021 say?

  • One of the main proposed amendments is that, the term “government” in any law made by the Legislative Assembly shall mean the L-G.
  • The Bill proposes to amend Sections 21, 24, 33 and 44 of the 1991 Act.
  • Section 44 of the 1991 Act says that all the executive actions of the L-G, whether taken on the advice of his Ministers or otherwise shall be considered to be taken in the name of the L-G.
  • In the statement of“objects and reasons” section, the Centre refers that the amendment Bill seeks to give effect to the Supreme Court’s interpretation and that it “further defines” the responsibilities of the both elected government and the Lt Governor in line with the Constitutional schemes, as there was no clarity over the proposal or matters which are required to be submitted to the Lieutenant Governor before issuing order thereon.
  • The Bill says that the L-G’s opinion shall be taken before the government takes any executive action based on decisions of the Cabinet or any individual minister.

WHAT IS THE BONE OF CONTENTION?

BILL PURPOSES

POINTS OF RESERVATION BY THE GOVT. OF DELHI

The term “Government” in any law by the legislative assembly will mean “Lieutenant Governor”.

Article 239AA says legislature can make laws on any matters on the state and concurrent list except for issues relating to public order, police and land.

The assembly shall not make rules or committee to consider day-to-day administration or conduct inquires.

SC’s Constitution bench in 2018 recognised the assembly’s right and said Union has exclusive powers only in the above 3 issues.

Rule or committee made before the new amendment comes into force “shall be void”.

SC said L-G should work with the aid and advice of the council of ministers.

Before taking any executive action, the opinion of L-G shall be obtained by general or special order.

SC order clarifies that L-G has not been entrusted with any independent decision-making power.

L-G shall have the power to reserve for consideration any bill, and any of the matters outside the purview of the powers conferred on the legislative assembly.

While any matters of dispute can be sent to President, the SC said it does not mean every matter should be dealt in the same fashion.

Bill will define responsibilities in line with the constitutional scheme of governance of national capital, as interpreted by SC.

After being rejected by the people of Delhi, BJP seeks to drastically curtail the powers of the elected government. Bill is a dilution of SC’s 2018 judgement.

WHAT DID THE CONSTITUTION BENCH SAY IN ITS 2018 VERDICT?

  • In its 2018 verdict, the five-judge Bench had held that the L-G’s concurrence is not required for the issues other than police, public order and land. It added that decisions of the Council of Ministers will have to be communicated to the L-G.
  • “It has to be clearly stated that requiring a prior advise of the Lieutenant Governor would negate the ideals of representative governance and democracy envisaged 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 of the council of ministers.
  • The Bench has also said that “The status of the Lieutenant Governor of Delhi is not similar to the Governor of State, in fact he remains an Administrator, working with the designation of Lieutenant Governor”. It also pointed out that the elected government should keep in mind that Delhi is not a state.

THE GNCTD (Amendment) Bill, 2021

The Bill tries to amend the Government of National Capital Territory of Delhi Act, 1991.  The Act gives a framework for the functioning of the Legislative Assembly and the government of the National Capital Territory (NCT) of Delhi.  The Bill seeks to do amendments in certain powers and responsibilities of the Legislative Assembly and the Lieutenant Governor.

  • Restriction on laws cleared by the Assembly: The Bill provides that the term “government” will imply Lieutenant Governor (LG).
  • Rules to regulate Procedure of the Assembly: The Act allows the Legislative Assembly to make Rules to regulate the procedure and conduct of business of the Legislative Assembly. The Bill provides that such Rules must be in consonance with the Rules of Procedure and Conduct of Business in the Lok Sabha.
  • Inquiry by the Assembly for the administrative decisions: The Bill prohibits the Legislative Assembly for making any rule to enable itself or its Committees to (i) consider the matters of the everyday administration of the NCT of Delhi and (ii) conduct any inquiry with respect to administrative decisions. Further, the Bill also makes provision that all such rules made before its enactment will be void.
  • Assent to Bills: The Act also requires the LG to reserve somebills passed by the Legislative Assembly for the consideration of the President. These Bills are those:
    1. which have tendency to diminish the powers of the High Court of Delhi
    2. which the President may direct to get reserved
    3. which deals with the salaries and allowances of the Speaker, Deputy Speaker, and members of the Assembly and the Ministers, or
    4. matters relating to the official languages of the Assembly or the NCT of Delhi

The Bill also requires the LG to reserve those Bills which incidentally covers any of the matters outside the ambit of the powers of the Legislative Assembly.

  • LG’s opinion for executive actions: The Act specifies that all executive action by the government either taken on the advice of the Ministers or otherwise, must be taken in the name of the LG.

CONCLUSION:

The Supreme Court has already cautioned that the Interpretationof the law cannot ignore the conscience ofthe Constitution. When we take a broader view then we are also alive for the consequence ofsuch an interpretation. Democracy is an evolving entity and the ideaof reducingthe elected government to just a vestigial organ is worrisome.It can be expected that the Bill will promote harmonious relations between the legislature and the executive. It further defines the responsibilities of the elected government and the L-G, in accordance to the constitutional scheme of governance of the National Capital Territory of Delhi.