24 March 2021 4:00 PM GMT
Amid massive furor and protest from the Opposition members, the Rajya Sabha on Wednesday passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021. It was passed by the Lok Sabha on Monday.Rajya Sabha Deputy Chairman Harivansh Narayan Sigh declared the bill passed in a voice vote after a walkout by the opposition. Before the opposition walkout, the motion to...
Amid massive furor and protest from the Opposition members, the Rajya Sabha on Wednesday passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021. It was passed by the Lok Sabha on Monday.
Rajya Sabha Deputy Chairman Harivansh Narayan Sigh declared the bill passed in a voice vote after a walkout by the opposition. Before the opposition walkout, the motion to consider the bill was passed with 83 'Ayes' and 45' Noes' and no abstentions. Following that, the opposition members walked out.
The Bill seeks to enhance the powers of Lieutenant Governor of Delhi by declaring him to be the "Government of Delhi".
It also provides that the opinion of the LG "shall be obtained" on all such matters as may be specified by the LG, before taking any executive action on decisions of the Council of Ministers of the Delhi Government.
The Opposition members voiced that the Bill will subvert the elected Government of Delhi by vesting overriding powers in the LG, who works at the instructions of the Centre, and will affect cooperative federalism.
"This is the most pernicious, most unconstitutional Bill which this House has ever received": Dr. Abhishek M Singhvi @DrAMSinghvi on Govt of #Delhi (Amendment) Bill 20201, which redefines Delhi Govt as LG.#RajyaSabha pic.twitter.com/suPoT92EgP— Live Law (@LiveLawIndia) March 24, 2021
"This is the most pernicious, most unconstitutional Bill which this House has ever received": Dr. Abhishek M Singhvi @DrAMSinghvi on Govt of #Delhi (Amendment) Bill 20201, which redefines Delhi Govt as LG.#RajyaSabha pic.twitter.com/suPoT92EgP
They also opposed introduction of the proposed amendments by way of a simple Amendment Bill. It was stated that since Delhi has been conferred a special status under Article 239AA of the Constitution (Special provisions with respect to Delhi), any change in the powers of the Delhi Government should be brought by way of a Constitutional Amendment only.
It was also alleged that the Bill is an attempt to circumvent the interpretation made by a Constitution Bench of the Supreme Court in the Delhi v. LG case, which held that the LG is an administrative head in the "limited sense" and that he is "bound by the aid and advise" of the Council of Ministers of Delhi Government, except in matters of land, police and public order.
The Members said that by making implementation of the decision taken by the Council of Ministers of Delhi subject to the decision of the LG, the Central Government is overturning the 5-judge Bench judgment.
Salient features of the Bill:
The Bill seeks to amend the GNCT of Delhi Act, 1991, a legislation that provides framework for functioning of the Delhi Legislative Assembly and re-defines Delhi Government as the Lieutenant Governor (LG).
It curbs the Delhi Assembly's power to conduct its proceedings as per the rules of procedure made by it. It provides that the Rules made by the Delhi Legislative Assembly to regulate the procedure and conduct of business in the Assembly must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.
The Bill also 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, any provision in force having the above said effect will be void.
Further, the Bill provides that the opinion of the LG must be obtained before taking any executive action on decisions of Delhi Government, on such matters as may be specified by the LG.
Comparison with Supreme Court Constitution Bench judgment
This last leg of the Bill, requiring the Government to mandatorily seek the Lieutenant Governor's opinion on the matters so specified by him may be contrasted with the observations made by the Supreme Court in GNCT of Delhi v. Union of India & Anr. (commonly known as Delhi v. LG case).
Delineating the boundaries of power between the Lieutenant-Governor and Delhi Government in the said judgment, the Supreme Court had held that the LG cannot interfere in each and every decision of the Delhi Government, and that the LG is bound by the aid and advise of the Council of Ministers of the Delhi Government, except in matters of land, police and public order.
The Constitution Bench comprising of then CJI Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan had ruled that "LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advise of NCT Government in areas other than those exempted",
The Top Court had observed that the elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently.
It was held that the Parliamentary form of government is based on principle of "collective responsibility" of the cabinet.
"If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated," the Supreme Court had held.
The Constitution bench added that the real purpose behind the Constitution (Sixty-ninth Amendment) Act, 1991, which inserted Section 239AA (Special provisions with respect to Delhi) and paved way for setting up an elected Government in the Union Territory was "to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinion in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution."
It was held that to realize this real purpose, it is necessary to give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of the Constitution are reinforced in NCT of Delhi in their truest sense.
"The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi," the order stated.
In this backdrop, many members opposed the Bill. Leader of Opposition in the House, M. Mallikarjun Kharge said that the Government is trying to seize the powers of elected representatives in Delhi in order to run a "proxy Government" by handing over all the powers to a nominated LG.
He said that such centralization of power is against the Constitutional principles and the Bill must be referred to a Select committee for scrutiny.
MP from a constituency of Delhi, Sanjay Singh strongly opposed the Bill as being unconstitutional. He referred to Article 239AA(6) of the Constitution which states that "the Council of Ministers shall be collectively responsible to the Legislative Assembly".
He said that this being the position of the Constitution, there is no scope for the Government to make the Council of Ministers responsible to the LG by seeking his opinion for implementation of its orders.
Remarks by Senior Advocate Abhishek Manu Singhvi
Senior Advocate Abhishek Manu Singhvi, who is also a member of the Parliament, vehemently opposed the Bill. "This is the most pernicious, most unconstitutional Bill which this House has ever received," he said at the outset.
He emphasized that Delhi was especially inserted Constitutionally by Article 239AA which provided that it should be a full state and all provisions that apply to a State shall apply to Delhi. This is barring the power to legislate upon matters of public order, police and land.
He told the House that he appeared before the Supreme Court in Delhi v. LG case and will cite certain excerpts from the Constitution Bench judgment that will demonstrate that the Bill in question tries to nullify the effect of that judgment. He quoted:
"A conjoint reading of Article 239AA (3) (a) and Article 239AA(4) reveals that the executive power of the Government of NCT of Delhi is coextensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power" (emphasis supplied).
He further quoted,
"Article 239AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is coextensive with the Parliament's legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239 AA (3) (a)" (emphasis supplied).
Singhvi further read the Supreme Court judgment:
"The Lieutenant Governor has not been entrusted with any independent decisionmaking power. He has to either act on the 'aid and advice' of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him."
He remarked that the Bill is not only against Article 239AA of the Constitution but is also opposed to the Supreme Court judgment and the principles of Federalism.
He added that Cause 4 of the Bill precludes the Delhi Legislative Assembly from considering matters of day-to-day administration of the Capital or from conducting inquiries in relation to administrative decisions.
This he said, is against Entry 39 in List II under Schedule VII of the Constitution which provides that powers of Legislative Assembly are within the domain of the State Government.
With respect to the provision requiring LG's opinion before implementation of Government's decisions, Singhvi said that it is against sub-clause 6 under Article 239AA of the Constitution which states that the Council of Ministers shall be collectively responsible to the Legislative Assembly. "But this Bill says that everyone will be responsible to LG. This is direct contradiction," Singhvi remarked.
Union Minister G Kishan Reddy claimed that the Bill does not propose to bring any Constitutional amendment. He insisted that the Bill only seeks to clear certain ambiguities in the law.
Reddy claimed that that the Bill neither takes away any right from the Delhi Government nor it confers any new rights on the LG. He said that the proposed amendments are to clarify the points raised after directions from the Supreme Court.
"The Honorable Court said it is incumbent on Delhi Government to inform the Lieutenant Governor of its decisions. Some clarification is needed as it is affecting the citizens. It is necessary to remove the administrative uncertainties…It will improve administrative functioning," he said.
BJP MP Bhupender Yadav insisted that Delhi is not a full-fledged State. He said that the territory is essentially a Union Territory whose head, as declared under the Constitution, is the LG.
He stated that the proposed amendments to the 1991 Act are in line with General Clauses Act, 1897, which states that the head of the Central Government is the President and that of the State Government is the Governor. He said that since Delhi is a union territory, its head shall be the LG by the same analogy.
So far as proposed restrictions on the powers of the Delhi Legislative Assembly are concerned, he said that the same are only being standardized by bringing them in line with the Lok Sabha rules as part of "good governance".
He clarified that the Delhi Assembly Committee may look into Bills, Budgets, etc. However, it cannot look into day-to-day administration of the Government. "If Committee starts looking into criminal cases, what happens with powers of executive police," he asked.
He stated that the Supreme Court in its judgment said that the LG needs to be informed of all the decisions that are made by the Council of Ministers. He insisted that the Bill is simply intended to give effect to that observation.
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