Law and Justice

The Government of National Capital Territory of Delhi (Amendment) Act, 2021: A CRITIQUE

The Centre has notified a law that gives it more power over the city's elected government in the midst of a brutal second wave of Covid in Delhi. The "Government of Delhi" now refers to the "Lieutenant Governor of Delhi," who represents the Centre, under the amended law. This news came out as a major shock because it had a direct impact on the powers and workings of the Delhi state government. Also, it raised a vital question, i.e., whether it imposes a threat to democracy in India. Before delving into this news its crucial to understand the powers of a lieutenant governor. It's critical to understand the powers of a lieutenant governor before delving into this narrative.

The leader of a Union Territory is the Lieutenant-Governor. Only the Union Territories of Andaman and Nicobar Islands, Delhi, and Puducherry have the post in India. Administrators are appointed in other Union Territories. Delhi is designated as a Union Territory in the Indian Constitution's First Schedule. It is governed by the President, who has the authority to act to the degree that he sees fit. It is governed by the President, who has the authority to act to the degree that he sees fit, through an Administrator whom he appoints (underArticle239). Article 239AA was inserted to the constitution by the 69th Constitutional Amendment Act of 1991. The National Capital Territory of Delhi is the name given to the Union Territory of Delhi, and the Administrator nominated under Article 239 is known as the lieutenant governor (Article239AA). The Lieutenant Governor's functions in Delhi are defined under Section 41 of the GNCT (Government of National Capital Territory) of Delhi Act, 1991. During an issue that falls outside the scope of the Legislative Assembly's authority, the Lieutenant Governor may intervene at his discretion. After the Delhi Administration Act of 1966 went into effect in September 1966, the office of Lt. Governor was created. The Lt. Governor addresses the House at the start of the primary session following each election to the Assembly and at the start of the first session of each year. According to Section 41 of the Delhi GNCT Act of 1991:

  • If the Lt. Governor is obligated by law to act in his discretion, his judgement will be definitive in that situation.
  • The LG exercises his powers with the assistance of the Delhi Police Commissioner and the Vice Chairperson of the Delhi Development Authority (DDA), both of whom have their own administrative structures.
  • Although the Lt. Governor is the DDA's Ex-officio Chairman, he executes his executive powers through the Appellate Authority in accordance with several Acts/Rules/Regulations that apply in Delhi.
  • In the event of a disagreement between the Lieutenant Governor and his Ministers on any topic, the Lieutenant Governor may submit the subject to the President for determination and act on the President's decision. 
  • The Lieutenant Governor becomes the government's full-fledged executive leader under President's Rule. He has the authority to establish a council of ministers made up of advisors.
  • The length of the President's rule in the UT is likewise up to the Lt. Governor's choice.

However, with the Centre issuing a new rule stating that the city's elected administration must now seek the Lieutenant Governor before making any executive action, Delhi's lieutenant governor has effectively become the national capital's in-charge. the ministry of home affairs announced in a notification that, “In exercise of the powers conferred by sub-section (2) of section 1 of the Government of National Capital Territory of Delhi (Amendment) Act, 2021 (15 of 2021), the Central Government hereby appoints the 27th day of April, 2021, as the date on which the provisions of the said Act shall come into force.” 

On March 15, 2021, the Government of National Capital Territory of Delhi (Amendment) Bill was tabled in the Lok Sabha. The bill amends the Government of the National Capital Territory of Delhi Act of 1991. The Act establishes the foundation for the Legislative Assembly and the governance of Delhi's National Capital Territory (NCT). The bill modifies several authority and responsibilities. The bill modifies the Legislative Assembly's and Lieutenant Governor's powers and responsibilities. The Restriction on legislation was enacted by the Assembly as the bill stipulates that any reference to “government” in a legislation enacted by the Legislative Assembly must relate to the Lieutenant Governor (LG). This act provides the rules for the procedure of assembly by empowering the Legislative Assembly to enact Rules that govern the procedure and conduct of business in the Assembly. The Bill stipulates that such rules must be in accordance with the Lok Sabha's Rules of Procedure and Conduct of Business. The Bill also prevents the Legislative Assembly from enacting any rule that would allow it or its Committees to: (i) evaluate the day-to-day administration of the NCT of Delhi, and (ii) undertake any investigation into administrative decisions. Furthermore, the Bill states that any such rules enacted prior to its implementation shall be null and invalid. The LG is required by the Act to hold certain bills passed by the Legislative Assembly for the President's consideration. These Bills are those that may limit the High Court of Delhi's powers, (ii) which the President may direct to be reserved, and (iii) deal with the Speaker, Deputy Speaker, members of the Assembly, and Ministers' salaries and allowances or (iv) pertaining to the Assembly's or Delhi's NCT's official languages. The bill also requires the LG to reserve for the President any bills that involve subjects that are outside the scope of the Legislative Assembly's powers. All executive actions made by the government, whether on the advice of the Ministers or otherwise, must be done in the name of the LG. It further specifies that before taking any executive action on the Minister's/Council of Ministers' decisions, the LG's opinion must be solicited on specific subjects as stated by the LG.

Several legal and constitutional experts, including former Lok Sabha secretary general PDT Achary, NALSAR University of Law vice-chancellor Faizan Mustafa, and Congress MP and senior counsel Abhishek Manu Singhvi, feel the Centre's justification for the new concept of government in Delhi is flawed. They argue that because the L-G is a nominee of the Centre and not a member of the elected government, he is not bound by the laws, policies, and programs established by the Delhi Assembly or recommended by the state's council of ministers, although being named the Government under the amendment. Also, if political unrest or some other circumstance necessitates the imposition of President's Rule in Delhi, how would the L-G advise the President, given that he, not the elected representatives, would form the government? The Delhi Assembly would be required to follow the same norms of conduct as the Lok Sabha. Every Legislature is distinct within the constitutional structure. While the conduct standards for various assemblies are similar, as Singhvi pointed out in the Rajya Sabha, there is no statute or constitutional provision that mandates consistency in conduct rules throughout legislatures, and definitely none that states an assembly's standards must be the same as the Lok Sabha's. Despite the fact that the Rajya Sabha and the Lok Sabha are both Houses of Parliament, the Rajya Sabha and the Lok Sabha have different conduct rules. Aside from the obvious issue of legislative delays caused by differences of opinion between the L-G and the elected administration, this change would also slow down the government's overall operations.

The administrative powers of the government are at the heart of governance. The aim of the elected government will be defeated if such powers are restricted. As a result, it's difficult not to notice the political motivations behind the change. Many perceive this as the BJP broadening its horizons in order to negate Delhi's special status and elected government. It remains to be seen if the NCT of Delhi (Amendment) Act, 2021 is challenged before it reaches the courts. And if the challenge can be sustained.


Submitted by Shriya Jain