Centre vs State: Why the battle for Delhi could be far from over

“After being rejected by ppl of Del (8 seats in Assembly, 0 in MCD bypolls), BJP seeks to drastically curtail powers of elected govt thro a Bill in LS today. Bill is contrary to Constitution Bench judgement. We strongly condemn BJP’s unconstitutional n anti-democracy move (sic),” Arvind Kejriwal said in a tweet.

What is National Capital Territory of Delhi (Amendment) Bill, 2021

The bill propose to make amendments to the Government of National Capital Territory of Delhi Act, 1991 (Act). The centre has brought the legislation in view of the Supreme Court’s judgment in 2018 with regard to delegation of power between Delhi government and LG.

The bill ensures that the Lieutenant Governor is necessarily granted an opportunity to exercise the power entrusted to him under proviso to clause (4) of Article 239AA of the Constitution, in a select category of cases.

It also gives power to LG to make rules in matters which falls outside the preview of the Delhi Legislative Assembly.

It also proposes that all executive action will be expressed to be taken in the name of the Lieutenant Governor.

“Delhi Government” to mean “Lieutenant Governor”?

Currently, the police, the law and order comes under the Union home ministry while administrative affairs fall under the Delhi government. The bill clarifies that the expression “Government”, which in the context of legislations to be passed by the Delhi assembly, shall mean the LG of Delhi, consistent with the status of Delhi as a Union Territory to address the ambiguities in the interpretation of the legislative provisions.

The NCT Bill 2021 aims to demarcate the powers of the Lieutenant Governor (L-G) of Delhi, that may translate into the curtailment of the powers of the chief minister in Delhi.

According to proposed amendments, Section 21 of the Act — dealing with restrictions on laws passed by legislative assembly with respect to certain matters — is sought to be revised to clarify that the expression ”government” referred to in any law to be made by the legislative assembly shall mean the ”Lieutenant Governor”. A sub-section shall be inserted to this effect in Section 21.

In section 24 of the principal Act — which requires a Bill passed by the Delhi legislative assembly to be presented to the LG who may assent, withhold or reserve it for consideration of the President — an additional clause will be inserted to cover any of the matters that fall outside the purview of the powers conferred on the legislative assembly.

In Section 33 of the principal Act, in sub-section (1) after the words “conduct of its business”, the words “which shall not be inconsistent with the Rules of Procedure and Conduct of Business in House of People” shall be inserted.

Also, in the proviso, for the words “Provided that”, the following shall be substituted, “Provided that the Legislative Assembly shall not make any rule to enable itself or its Committees to consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions, and any of the rule made in contravention of this proviso, before the commencement of the Government of National Capital Territory of Delhi (Amendment) Act, 2021, shall be void”.

In section 44 of the principal Act dealing with powers to makes rules for conduct of business, in sub-section (2) — which states that as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor — the following proviso shall be inserted, namely “Provided that before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, State Government, Appropriate Government, Lieutenant Governor, Administrator or Chief Commissioner, as the case may be, under any law in force in the Capital, the opinion of Lieutenant Governor in term of proviso to clause (4) of article 239AA of the Constitution shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor”.

According to the statement of objects and reasons of the bill, the original bill was enacted to supplement the provisions of the Constitution relating to the legislative assembly and a Council of Ministers for Delhi and for matters connected therewith.

“The section 44 of the act deals with conduct of business and there is no structural mechanism provided in the act for effective time bound implementation of said section. Further, there is no clarity as to what proposal or matters are required to be submitted to the LG before issuing order thereon,” it said.

How did it all begin?

The power tussle between Kejriwal and the L-G dates back to 2014. It began with a FIR filed by the ACB on the direction of Arvind Kejriwal-led administration against Reliance Industries Ltd (RIL) and UPA ministers on gas pricing.

RIL moved Delhi High Court for quashing of FIR and challenging a 1993 notification of the Centre giving power to Delhi government’s ACB to probe union government employees.

The Narendra Modi gogernment which came to power in 2014 issued a notification to withdraw the powers of the ACB from probing the central government employees.

In August 2016, The Delhi High Court declared the LG as administrative head of Delhi and said the Kejriwal government’s argument that the LG was bound by the aid and advice of the council of ministers was “without substance”.

Later, the matter reache the supreme court, where the top court concluded saying LG does not have independent decision-making powers and is bound to act on the aid and advice of the Council of Ministers.