Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021

In News 

Recently, the Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021 came into force.

Rationale Behind This

• Section 44 of the 1991 GNCT Act deals with the conduct of business and there is no structural mechanism for effective time-bound implementation of the said section.
  • Section 44 of the 1991 Act says that all executive actions of the L-G, whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the LG.
• Further, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing an order thereon.

Key Highlights of the Act 

• It amended Sections 21, 24, 33 and 44 of the GNCT of Delhi Act, 1991
  • According to the legislation, the “government” in Delhi means the “Lieutenant Governor.”

•  The city government will now mandatorily have to take the opinion of the L-G before taking any executive action.
• The Act defines the responsibilities of the elected government and the L-G along with the “constitutional scheme of governance of the NCT” interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.

• It will also seek to ensure that the L-G is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to clause (4) of Article 239AA of the Constitution.

• This particular clause provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.

• It will also provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.

Criticism

• It is an unholy attempt to curtail the powers of a democratically elected Government 
  • It is an affront not only to the will of the people but to the spirit of federalism 
•   It is being argued that by virtually handing over executive powers to the Lieutenant Governor, the government has acted against the spirit of the Supreme Court ruling that aimed to safeguard the elected government of Delhi from undue interference or obstacles from the Lieutenant Governor. 
• The amendment stipulates that the State government shall obtain the Lieutenant Governor’s opinion on its decisions before taking executive action on them. 
  • This prevents the government from urgently acting in case of an emergency as it would have to wait for the Lieutenant Governor’s assent/viewpoint.
• Significantly, the Lieutenant Governor is not obliged to give his opinion to the State government within a time frame. 
• Critics argue that the Lieutenant Governor could politically exploit these unbridled powers to hamper the government’s administrative work and thus turn the political tides against the incumbent if he so desires. 
  • That truly would undermine the interests of the party in power and also of the people.

Union Government’s Stand

• Government has attempted to contradict all the above observations. 
• This will increase the administrative efficiency of Delhi and will ensure a better relationship between the executive and the legislator. This is a technical Bill. This is not a Bill related to politics. 
• It will bring accountability and overall transparency in governance.
• The amendments have been brought to remove ambiguities in the existing Act and stressed that changes in the law have been sought in the spirit of what has been said in a Supreme Court judgment.

• It will further define the responsibilities of the elected government and the L-G, in line with the constitutional scheme of governance of Delhi.

Previous Issue between Lieutenant Governor and Delhi Government 

• The genesis of the act lies in the administrative tug of war between the Aam Aadmi Party (AAP) led-Delhi government and then Delhi Lieutenant Governor (L-G) Najeeb Jung immediately after the former came to power for a second stint in 2015. 
• Between early 2015 and mid-August 2016, several orders issued by the Delhi government related to the matters such as transfer of bureaucrats, setting up of Commissions of Inquiry and the administration of the Anti-Corruption Branch (ACB), were either declared void or reversed by the L-G citing procedural lacunae ranging from lack of approval from his office to not being constitutionally empowered to take such decisions.
  •  Over the years, there was friction between the Chief Minister and the Lieutenant Governor over power-sharing. 
  • The focal point of these conflicts was that in case of a difference between the Lieutenant Governor and the Council of Ministers on any matter, the matter was to be referred to the President by the Lieutenant Governor for his decision and pending such decision the Lieutenant Governor was empowered to take any action on the matter as he deemed right.
• The issue was taken by the Delhi government to the Delhi High Court which, in August 2016, held that the L-G had “complete control” of matters related to the NCT and “nothing will happen without the concurrence of the L-G.” 
  • However, the judge held that the L-G was bound by the aid and advice of the Council of Ministers on some matter.
    • The Delhi government then moved the Supreme Court.

Judgement of the Supreme Court:

• The Constitution Bench of the Supreme Court, in Government of NCT of Delhi vs Union of India  in 2018, held that the government was not under obligation to seek the concurrence of the Lieutenant Governor on its decisions and that any differences between them should be resolved keeping in view the constitutional primacy of representative government and cooperative federalism. 
• The Supreme Court ruled that the Lieutenant Governor should attempt to resolve the differences within the framework of the law and the Transaction of Business Rules before he decided to refer a matter to the President.
  • Essentially, the Supreme Court judgment made it extremely difficult for the Lieutenant Governor to refer such matters to the President. 

Source: TH