What’s Wrong With the NCT of Delhi (Amendment) Act, 2021: Academike Explainer

It’s only ironic that the Bhartiya Janata Party (BJP) had first sought increased autonomy and Statehood for Delhi in the year 1980, 1998 and 2003. In an unforeseen U-turn, with BJP at the Centre, Delhi’s autonomy is further discarded. Gunjan Bahety details the new Amendment passed by the Lok sabha as the NCT of Delhi (Amendment) Act 2021 and its repercussions.

By Gunjan Bahety, Intern at Lawctopus and fourth-year law student at Maharashtra National Law University, Nagpur.

Backdrop

In 1911, during the British Raj,  Delhi became the capital and centre of power concentration. After independence, it became one of the part ‘C’ states, which used to include chief commissioners’ provinces. Delhi’s Chief Commissioner was elected by the Central Government, providing the former with some power to make decisions. This lasted for a short while until the States Reorganisation Commission demoted  Delhi further to the status of Union Territory in 1956, providing with a namesake Metropolitan council.

Then began Delhi’s reoccurring scuffle for statehood and undivided sovereignty.

In 1990, the (Sixty-ninth Amendment) Bill was introduced in the Parliament by the Indian National Congress. The proposed Amendment had sought to reorganise the administrative setup in the Union Territory of Delhi. The reorganisation was prompted based on the recommendations submitted by the R.S. Sarkaria Committee (later known as the Balakrishnan Committee). The report made recommendations for an elected representative for Delhi while also maintaining the status of a union territory.

The Bill became an Act in the following year, adding Article 239 AA and 239 BB in the Indian Constitution which granted Delhi the status of Union Territory with a Legislative Assembly. Additionally, passing the Government of National Capital Territory (NCT) of Delhi Act, 1991. The 1991 Act laid down the contours of governance, defining the rules for the elected Chief Minister, the Assembly and the LG.

Hence started Delhi’s limbo; it’s extraordinary status and its demand for statehood.

The NCT (Amendment) Act, 2021: Clarity or Complexity?

It’s only ironic that it was the Bhartiya Janata Party (BJP) that had first sought increased autonomy for Delhi and championed its statehood in 1980 and 1998. Then again, in 2003, the BJP had proposed statehood for Delhi when contesting against the Congress Government.

The tables have certainly turned after the Aam Aadmi Party (AAP) acquired leadership in Delhi’s Assembly and BJP came to power at the Centre. With few high tides and many tussles with the Lieutenant Governor (LG) in its first term, the AAP government’s battle for jurisdiction was not a smooth sail.

AAP’s second term in Delhi has certainly aggravated the Centre versus Delhi divide. And perhaps, that is the reason which prompted the introduction of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021.

The Bill made its way to the Lok Sabha seven days before its passing. The purpose of the new Amendment was defined in the ‘Statement of Object and Reasons’ as:

“to further define the responsibilities of the elected government and Lieutenant Governor (LG) in Delhi”.

What Are the new Amendments? How Are They Different From the NCT of Delhi Act, 1991?

According to the ‘Statement of Object and Reasons’ in the Amendment, the term ‘Government’ referred to in any law made by the Legislative Assembly will now mean the Lieutenant Governor (LG) of the National Capital Territory of Delhi.

The 2021 Amendment has ‘necessarily granted an opportunity’ to the LG to exercise its power under Article 239AA (4) of the Constitution. That is, necessitating the Delhi government to seek aid and advise from the LG before implementing any decision, including ones taken by the Council of Ministers. Plus, now, the LG can make rules in matters that they think fall outside the purview of the Legislative Assembly.

This simply means that the Legislative Assembly will not be left with any effective autonomy. And the Delhi government will have to seek LG’s approval before taking any decision. Hence this Amendment reverses the power dynamics, making LG more than just an ‘Administrator’, as prescribed by the Supreme Court of India in its 2018 judgement.

The Centre’s Reasoning

While introducing the Bill,  the Home Ministry had pledged that the Amendment would bring clarity to the 1991 Act. The said Amendment was proposed to remove ambiguities concerning Section 44 of the 1991 Act, which deals with the conduct of business. According to the Ministry:

“There is no structural mechanism provided in the Act for effective time-bound implementation of the said section”

The Amendment seeks to give wide discretionary powers to the LG even in matters where the Delhi government is empowered to make laws.

Simply put, any bill or any matter which is beyond the scope of the Legislative Assembly’s powers may be reserved for consideration by the LG.

Why Is Delhi Government Protesting Against the NCT of Delhi (Amendment) Act?

The Delhi government has raised obvious reservations against the proposed amendment. It has majorly relied on the Government of NCT of Delhi v. Union of India, 2018.

Wherein, the Delhi government had contended that Delhi had become a complete state in 1991. On the other hand, the Union Government argued that the Delhi government’s powers are limited, giving the LG the power to veto any decision.

In its 2018 verdict, the Supreme Court held:

“in all matters except police and land, the elected government of Delhi had full powers like any other state to make laws and implement them, except that the LG was to be kept informed about the decisions”.

It was also held that the Lieutenant Governor was bound by the aid and advice of the Council of Ministers.

The Supreme Court’s order clarified that the LG had not been entrusted with any independent decision-making power. Further, the expression ‘any matter’ would not mean that ‘every matter’ be sent to the President.

After this judgement, the Delhi government got a free pass to side-step the Lieutenant Governor in most of its actions. Though the tussle continued even after the judgement, it did enable the Delhi government to take major decisions without getting approval from the LG.

Summing-up

This Amendment questions the idea of ‘collaborative federalism’ and further aggravates complexities over Delhi’s jurisdiction.

It is needless to say that the Amendment is riddled with political bias. It becomes even more perplexing because the 2021 Amendment effectuates an upturned reading of the Supreme Court’s order. Far from it, the Centre has justified the need for the Amendment from the 2018 judgement. On the contrary, the NCT of Delhi (Amendment) Act, 2021, will further tie-down Delhi Government’s limited control.

The crux of governance lies in the administrative powers of the government. Restricting such powers will invalidate the purpose of the elected government. Therefore, it’s hard not to see the politics behind the amendment.

Many see this move as BJP expanding its bounds to nullify the special status of Delhi and its elected government. It is yet to be seen whether the NCT of Delhi (Amendment) Act, 2021 gets challenged ahead of the court. And if the challenge sustains itself.

References

Constitution of India. Article 239 AA, special provisions with respect to Delhi. (1958). Retrieved from https://www.constitutionofindia.net/constitution_of_india/the_union_territories/articles/Article%20239%20A%20A  

AAP seeks opposition support on NCT BILL ahead of discussion in Rajya Sabha. (2021, March 23). Retrieved from https://www.hindustantimes.com/cities/delhi-news/on-nct-bill-aap-seeks-support-of-opposition-non-nda-parties-101616491994480.html 

Sahoo, N. (June 2018). Statehood for Delhi: Chasing a Chimera. ORF Occasional Paper, 156, 2-38.

Delhiassembly.nic.in. (n.d.). Retrieved from http://delhiassembly.nic.in/session/14_2.htm

THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991. (1992, January 2). Retrieved from http://delhiassembly.nic.in/nctact.htm

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