‘Disruptions’ made changes in NCT Act necessary, says Centre’s affidavit

According to the 61-page affidavit filed through the ministry of home affairs, the Centre claimed that “administration in the NCT of Delhi continued to suffer on a day-to-day basis on account of a lack of clarity in relation to executive authority”, and thus, the 2021 amendments were carried out “to bring clarity and streamline the governance structure of the NCT of Delhi.”

The AAP did not respond on Wednesday. However,on March 24, 2021, when the Parliament passed the GNCTD (amendment) Bill, Deputy chief minister Manish Sisodia said the Bharatiya Janata Party (BJP) “fears Kejriwal”.

“It is a black day for Indian democracy. The rights of the government elected by the people of Delhi have been snatched away and put in the hands of the lieutenant governor,” Sisodia had tweeted at the time.

The affidavit, submitted before a bench headed by Chief Justice of India (CJI) NV Ramana, contended, “Last several years have witnessed several instances of practical difficulties and disruptions in the functioning of the NCT of Delhi owing to the fact that the LG is often kept in the dark regarding the decisions pertaining to the NCT of Delhi, despite the fact that even under the unamended GNCTD Act and Transaction of Business Rules, the Government of NCT of Delhi was required to inform the Lieutenant Governor.”

The affidavit also justified the new provisions that seek to invalidate retrospectively rules made by the legislative assembly of Delhi or committees/House panels to consider the matters of “day-to-day administration of the Capital” or conduct inquiries in relation to the administrative decisions.

It emphasised that the ceding of power to the elected executive in Delhi cannot be construed to mean the ceding of power of executive authority to the legislative assembly of Delhi.

On March 24, 2021, AAP spokesperson Raghav Chadha said that the Bill was an unconditional attempt to make the Delhi government “administratively impotent”. “The GNCT of Delhi (Amendment) Bill, 2021 is an unconstitutional attempt to make Delhi government ‘administratively impotent’ by a political party that has been made ‘electorally impotent’ by people of Delhi,” he said.

The affidavit was filed in response to a petition filed by the Delhi government last year, challenging these amendments which gave the LG more teeth while diluting the powers of both the elected government and the legislative assembly.

On Wednesday, solicitor general (SG) Tushar Mehta, appearing for the Centre in the petition against the 2021 Amendment Act, informed the bench, which also included justices Surya Kant and Hima Kohli, about the affidavit filed by the Centre. Mehta urged the bench to refer this petition, along with another case relating to transfer and appointments of bureaucrats in Delhi, to a five-judge bench. Senior advocate Abhishek Manu Singhvi, representing the Delhi government, opposed Mehta’s request. In February 2019, a two-judge bench had contrasting opinions as to who wielded power on the Delhi bureaucracy as they referred the issue to the larger bench. The court will continue hearing the matter pertaining to the reference to a five-judge bench on Thursday.

The GNCTD (Amendment) Act, 2021 and the accompanying amendments to the Transaction of Business of the GNCTD Rules, 1993 came into effect on March 28, 2021 by which some crucial provisions of the Act stood amended.

The AAP government’s petition, filed through advocate Shadan Farasat, rued that the “overriding powers” given to the L-G “disenfranchised” the people of Delhi by taking away power from elected representatives. The amendments, the petition said, strike at the root of representative democracy and violate the law-making power of the Delhi Assembly as recognised under the Constitution.

At the core of the controversy is an amendment to Section 44 of the GNCTD Act, which has inserted a new proviso making it mandatory for the Delhi government to seek the opinion of the LG before taking any executive action in pursuance of decisions by the council of ministers, or any other decision under any law in force in the Capital.

In its affidavit, the central government defended the amendment to Section 44 arguing that the new provision plugs the lack of clarity regarding the proposals that need to be submitted to the LG before issuing any orders in relation to such proposals.

The amendment to Section 44 enables the LG to discharge his duties under Article 239AA (4) whereby the LG can either act on the aid and advice of the council of ministers, or if there is difference of opinion, he can refer the matter to the President. “However, in order to decide whether a matter needs to be referred to the President or not, the LG must be given a reasonable opportunity, which includes not merely intimation of the decision but the reasons thereto in order to enable him to form his opinion,” said the Centre.

The amendments, the affidavit said, do not attempt to vest independent executive power to the LG since the LG can either act on the aid and advice of the council of ministers or implement the decision taken by the President on a reference being made by him. “In order to effectively discharge this power, the LG has to be informed of all matters pertaining to the administration of the NCT of Delhi,” said the Centre.

“The purpose of the Amendment Act of 2021, thus, is by all means to allay any confusion that has arisen in the implementation of legislative provisions in the national capital. The Amendment Act of 2021 has made no substantive amendments which may have the effect of directly or indirectly attempting to override the constitutional provisions or judgments of this court,” said the affidavit.

It added that Parliament has the right to make modifications in the law on the basis of the experience gained over a period of time and therefore, the Delhi government cannot lay a challenge to the 2021 Act by arguing that certain provisions of law have been followed since 1991 when the GNCTD Act came into being.

Further, all actions of government and legislative actions are already conducted in the name of the LG under the Transaction of Business Rules and therefore, the amendment stating that the “Government” referred to in any law would mean the LG only “streamlines the process of governance by removing ambiguities and bringing consistency in the use of the word, the Union government said.

After Parliament passed the Bill, PDT Achary, former secretary general of Lok Sabha, said the Bill suffers from serious constitutional infirmities. “It seeks to nullify the July 2018 decision of the Constitution Bench of the Supreme Court. It is against the law laid down by the Supreme Court. The definition of the government can only be the elected government,” he said.