GNCTD Amendment, 2021: Iron Hand of the Centre over NCT of Delhi?

- Maitreyi Singh & Rashi Jeph

Introduction

The Government of National Capital Territory of Delhi Act, 1991 (“GNCTD Act, 1991") was amended in 2021 to give more powers to the Lieutenant Governor (“LG”) by the Government of National Capital Territory of Delhi Amendment Act, 2021 (“GNCTD Amendment”). The GNCTD Amendment has been in controversy for violating the fundamental rights of the people and other constitutional provisions such as Article 239 AA of the Constitution. The government has, however, claimed that GNCTD Amendment is in accordance with the legal and constitutional provisions and in line with the judgments of the Hon’ble Supreme Court namely, Govt. of Nct of Delhi v. Union of India (2018) and Govt. of Nct of Delhi v. Union of India (2019).

In this article, we will be examining the judicial position on the issue of the distribution of power between the elected government of the national capital of Delhi (“Delhi”) and LG and ascertain whether the GNCTD Amendment is backed by judicial decisions. Furthermore, to challenge the constitutionality of the GNCTD Amendment from the glance of colourable legislation, we will be delving into the provisions of Article 239-AA of the Constitution of India and ascertain whether the amendment has invalidated the provisions of Article 239-AA without amending the Constitution.

Overview of GNCTD Amendment

The GNCTD Amendment aims at ensuring better governance in Delhi and improved implementation of schemes and programmes meant for the common people of Delhi and create a harmonious relationship between the Legislature and the Executive. In name of these objectives, the GNCTD amendment has restrained the executive and legislative powers of the elected government of Delhi. This is indicated by Section 4 which restrains the legislative assembly from making any law to consider the matters of the day-to-day administration of the Capital or conducting inquiries in relation to the administrative decisions. Furthermore, Section 5, mandates the opinion of the LG before taking any executive action and Section 2 of the amendment further provides that “Government” shall mean as referring to the LG. These provisions of the amendment have brought it under challenge for violating the constitutional provisions and going against the judicial decisions.

The GNCTD Amendment claims that it is consistent with the scheme of governance of the NCT of Delhi, as interpreted by the Hon'ble Supreme Court. In light of this, it becomes crucial to analyse the opinion of the court on this issue.

Judicial position

In Govt of NCT v. Union of India (2018), while discussing the executive powers of the government of Delhi, the court observed that a conjoint reading of Article 239-AA(3)(a) and Article 239-AA(4) reveals that the executive power of the government of Delhi is co-extensive with the legislative power of the Delhi Legislative Assembly, which is envisaged in Article 239-AA(3). This implies that the executive powers of the council of ministers of Delhi will extend over all those subjects for which the Delhi Legislative Assembly has legislative power.

With regard to the legislative powers of the Delhi legislative assembly, the court observed that undoubtedly, Governance of the NCT involves national imperatives, and those national imperatives have led to the carving out of the areas of police, public order, and land from the sphere of the legislative assembly of Delhi and their entrustment to parliament, all other subject matters are left in the hands of the legislative assembly of Delhi. Therefore, the legislative assembly of Delhi will have powers to legislate over all the matters in the concurrent and state list except the three exceptions provided.

Contrastingly, the Amendment has encroached upon both the legislative and the executive powers of the elected government of Delhi by restricting the legislative assembly from making any law to consider the matters of the day-to-day administration of the Capital under Section 4 and mandating the opinion of the LG before taking any executive action under Section 5. Thereby disregarding the principles laid down by the court.

These provisions also go against the fundamental principle of democracy where the elected representatives and the council of ministers of a state, being accountable to the voters of the said state, must have the appropriate powers so as to perform their functions effectively and efficiently as also held in the Govt of NCT v. Union of India (2018).

In State Of Bihar v. Bal Mukund Sah, the apex court observed that the Indian Constitution aims to enable the people to have the right to participate in the decision-making process that shall govern them and also pave the path of their welfare. In a democracy, this is protected through elected government. This principle is also followed in the executive matters as the governor, who is the formal head of the state, is bound to take a decision on the aid and advice of the council of ministers, who are in turn responsible to the assembly. It is also pertinent to mention that in the Kesavananda Bharati case, republican and democratic forms of government have been recognized as part of the basic structure of the Constitution. However, the GNCTD Amendment compromises this aspect of democracy as it gives abundant powers to the LG to make laws and execute them without being accountable to the public.

Considering the above arguments, we are of the opinion that the judicial decisions do not favour the GNCTD amendment.

GNCTD amendment: A Colourable exercise of power leading to virtual nullification of Article 239AA.

An essential feature of the Constitution of India is its federal structure which is enshrined in the basic structure doctrine. The novel concept of collaborative federalism involves the idea of negotiation and coordination so as to iron out the differences arising between the Union and the State Governments in their respective pursuits of development.

Although the Centre has been bequeathed with greater power vis-à-vis the States, it cannot tamper with the powers of the States. By virtue of the same, the federal nature of the Constitution cannot be disturbed by the Centre. Any indirect approach to do so undermines the federal structure of the government and is a colourable exercise of power. The true principle of colourable legislation is based on the maxim ‘quando aliquid prohibetur ex directo, prohibetur et per obliquum’ (it is not permissible to do indirectly, what is prohibited directly). In the Constituent Assembly debates this principle was addressed by Alladi Krishnaswamy:

“If the legislature is a colourable device, a contrivance to outstep the limits of the legislative power or to use the language of private law, is a fraudulent exercise of the power, the Court may pronounce the legislation to be invalid or ultra-vires ”

In R.S Joshi v. Ajit Mills, the Apex Court observed that: “In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is struck on it, and then it is colourable legislation.”

The essence of the doctrine is to question the competency of a particular legislature and its authority to enact a particular law rather than the intention behind the enactment. The courts have to determine if the legislature has transgressed its power or acted within the ambit of its power.

Applying this principle in the present matter, it is pertinent to note that the constitution provides for a “sui generis” status to Delhi. Article 239AA was added to Part VIII of the constitution, which provided for an elected council of ministers responsible to the assembly. They have the power to legislate on the state as well as the concurrent list except on matters of land, police, and public order.

The GNCTD Act 1991, is a supplemental law that has been enacted to give effect to Article 239 AA, and therefore, it cannot travel beyond its provisions. The GNCTD Amendment Act, 2021 is a "piece of colourable legislation" as the Rule confers veto power to the Central government and gives it the authority to control and supervise the Delhi government, affecting the federal structure of the Constitution. It directly affects the application of Article 239-AA of the Constitution under the guise of amending the GNCTD Act 1991.

The state government’s powers are under constant threat as the LG has been given the power to differ with the government and refer the matter to the President. Thus the elected government doesn’t have the power to take decisions without the agreement of the LG. The change in Section 33(1) of the Act, further undermines the federal character as it directs the state government to make rules that are not inconsistent with the “Rules of Procedure and Conduct of Business in House of People”. This implies taking away the inherent right of a legislature to be independent and frame rules within their powers.

It is important to interpret the Constitution in a manner that the powers of the state legislature are not eroded and the federal character of the Constitution is preserved. It is evident that the centre has invalidated the provisions of the Article without amending the Constitution. It has violated the Constitution by employing indirect methods to change the representative form of democracy without following the procedure.

Conclusion

The GNCTD Amendment makes a mockery of constitutional provisions and their interpretation. The Apex Court has adopted the principles of federalism as the basis to give unfettered freedom to the elected state governments to carry out their decisions. In the words of Dr. B R Ambedkar, “the provinces are as sovereign in their field which is left to them by the Constitution as the centre is in the field which is assigned to it.”

In accordance with the basic principle of federalism, the Delhi assembly is an independent legislative body, and the Lok Sabha has no control over it. The state government’s right to form a representative government that is accountable to people rather than the centre cannot be curtailed indirectly by any rule. The Parliament has no power to legislate and take away the inherent right of a legislature to frame rules for conducting its proceedings. It also compromises the republican and democratic aspects of democracy and hinders the right of the people to participate in the decision-making process.

Hence, the amendment is a colourable legislation that nullifies the constitutional provision under Article 239 AA and also goes against the judicial pronouncements, thus should be held as unconstitutional.

*Maitreyi Singh is a third year student at National Law University Jodhpur and Rashi Jeph is a fourth year student at National Law University Jodhpur.

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