The Delhi Government has moved the Supreme Court seeking the quashing of the four amended sections of the Government of National Capital Territory of Delhi (GNCTD) Act and 13 Rules of the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 as they violate the doctrine of basic structure of the Constitution.
The Centre, through its amendments, has given more power to the Lieutenant Governor than the elected government of the people of Delhi, the Arvind Kejriwal government said in a press release.
The Delhi Government has challenged the constitutionality of Sections 21, 24, 33, 44 of the GNCTD Act, 1991 and Rules 3, 6A, 10, 14, 15, 19, 22, 23, 25, 47A, 49, 52 and 57 of Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.
In 2016, following differences between the LG and the Delhi Government in respect of powers, duties and governance, the Constitutional Bench of the Supreme Court had held that the Council of Ministers shall inform all its decisions to the Lt Governor but that does not mean the concurrence of the Lt Governor is required.
Yet on March 15, 2021, the Centre introduced the GNCTD Act Amendment Bill in the Lok Sabha and passed it; this bill received the assent of the President and became the Government of National Capital Territory of Delhi (Amendment) Act 2021, on 28th March 2021.
Later, in July, the Transaction of Business of Government of National Capital Territory of Delhi (Amendment) Act came into force.
‘Amendments violate basic structure of Constitution; go against Section 239-AA, Constitutional Bench order’
In its petition, the Delhi Government has contended that the amended sections of the GNCTD Act diminish constitutionally guaranteed powers and functions of the elected legislative assembly and council of ministers of Delhi; overturn the constitutionally stipulated balance between the Delhi Government and the Union Government; and overrule the judgment of the Constitution Bench of the Supreme Court in ‘Government of NCT of Delhi v Union of India, (2018)’.
The amendments by the Centre are an attempt to treat the LG as the ‘default administering authority over the NCT of Delhi’, by equating the position of the LG with that of the “government”, by authorising the LG to withhold consent from bills that, in his judgment, may be “incidentally” outside the scope of legislative assembly’s legislative powers, and by empowering the LG to interfere in the day-to-day administration of the Delhi Government by introducing the requirement of obtaining the LGs views before executing a decision of the Council of Ministers.
The Delhi Government has maintained a firm stance on the fact that the Amendment Act has, in effect, disenfranchised the people of Delhi, and violated their political rights under the Constitution.
The Delhi Government has sought a direction, order or writ declaring and quashing Sections 21, 24, 33, 44 of the Government of National Capital Territory of Delhi Act, 1991 as amended by the Government of National Capital Territory of Delhi (Amendment) Act, 2021 as unconstitutional and ultra vires the Constitution of India.
It has been further sought that the court passes a direction, order or writ declaring and quashing Rules 3, 6A, 10, 14, 15, 19, 22, 23, 25, 47A, 49, 52 and 57 of Transaction of Business of the GNCTD Rules, 1993, as amended/inserted by the Transaction of Business of the GNCTD (Amendment) Rules, 2021 as unconstitutional.
Amendments made by the Centre in GNCTD Act
The Amendment Bill amends powers and responsibilities of the Legislative Assembly and the Lieutenant Governor upon the following sections:
i. Restriction on laws passed by the Assembly: The Amendment Bill provides that the term “government” referred to in any law made by the Legislative Assembly shall mean LG. This is done by introducing a new clause (3) to Section 21 of the GNCTD Act, 1991.
ii.* Rules of Procedure of the Assembly:* Section 33 of the GNCTD Act, 1991 allows the Legislative Assembly to make Rules to regulate the procedure and conduct of business in the Assembly. The Amendment Bill provides that such Rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha and that any rule inconsistent will be void.
iii. Inquiry by the Assembly into administrative decisions: The Amendment Bill prohibits the Legislative Assembly from making any rule to enable itself or its Committees to consider the matters of day-to-day administration of the NCT of Delhi and conduct any inquiry in relation to administrative decisions. Further, the Amendment Bill provides that all such rules made before its enactment will be void.
iv. Assent to Bills: Section 25 of the GNCTD Act permits the LG to reserve certain Bills passed by the Legislative Assembly for the consideration of the President. These Bills are those: (i) which may diminish the powers of the High Court of Delhi, (ii) which the President may direct to be reserved, (iii) dealing with the salaries and allowances of the Speaker, Deputy Speaker, and members of the Assembly and the Ministers, or (iv) relating to official languages of the Assembly or the NCT of Delhi. The Amendment Bill requires the LG to also reserve those Bills for the President which “incidentally” cover any of the matters outside the purview of the powers of the Legislative Assembly
v. LG’s opinion for executive actions: The Act specifies that all executive action by the government, whether taken on the advice of the Ministers or otherwise, must be taken in the name of the LG. The Amendment Bill by inserting a proviso to Section 44(2) of the Act, adds that on certain matters, as specified by the LG, under any law in force in the NCT of Delhi, his opinion must be obtained before taking any/ executing any decision of the Minister/ Council of Ministers.
Amendments made in Transaction of Business of GNCTD (Amendment) Rules, 2021
i. Post amendment, Rule 23 read with Rules 10, 14, 25, 47A and 57, now provides that no executive action relating to the matters set out in Rule 23 and matters which the LG may determine can be implemented ‘before the opinion of the LG is obtained’.
ii. Amendment to Rule 49 has significantly accelerated the trigger for LG to refer a matter to the Central Government and thus invoke the LG’s wide ranging powers to interdict an executive action under Rule 51. Further, introduction of a deeming provision in Rule 49 now allows for any and every matter to be referred by the LG to the Central Government.
iii. Amendments to Rules 6A, 19, 52 and 57 have vested direct executive authority in the Secretaries of the Govt. of NCT of Delhi, which authority can be exercised by them without reference to, and even in derogation of the orders of, the Council/Ministers. This authority includes, authority to determine the legality of the actions of the Council/Ministers and not implement the actions if, in the opinion of the concerned Secretary, the actions are unlawful.