Centre versus State in Delhi

FEDERALISM/ POLITY

Topic:

• GS-2: Functions and responsibilities of the Union and the States
• GS-2: Issues and challenges pertaining to the federal structure

Centre versus State in Delhi

Context: The Centre has recently introduced the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 (GNCTD) in Lok Sabha, reviving the dispute on the distribution of powers between the elected government and the Lieutenant Governor (L-G).

Constitutional Framework of Delhi 

• Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution. 
• The GNCTD Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital. 
• For all practical purposes, the GNCTD Act outlines the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the Chief Minister with respect to the need to furnish information to the L-G.

What does the 2021 amendment Bill say?

• In light of Supreme Court Judgement: In the statement of objects and reasons section, the Centre claims that the amendment Bill seeks to give effect to the Supreme Court’s interpretation and that it further defines the responsibilities of the elected government and the Lt Governor in line with the Constitutional scheme. 
• Clarification on the term Government: The bill clarifies that the term “government” in any law made by the Legislative Assembly shall mean the L-G. This, essentially, gives effect to former L-G’s assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”. 
• Prior Opinion of LG: The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

What did the Constitution Bench say?

• Concurrence of LG: In its 2018 verdict, the five-judge Bench had held that the L-G’s concurrence is not required on issues other than police, public order and land. 
• Communication between CoM & LG: SC also had added that decisions of the Council of Ministers will, however, have to be communicated to the L-G. 
• Upheld the spirit of Representative Governance: SC stated that “It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution”. The L-G was bound by the aid and advice if the council of ministers, it had said.
• Status of LG and Delhi: The Court pointed out that “The status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”. It had also pointed out that the elected government must keep in mind that Delhi is not a state.

Consequences of the SC Judgement

• The Constitution Bench of the Supreme Court, therefore, tilted the scales in favour of the elected government through its 2018 verdict.
• Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision. 
• It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision.
• It is observed that it was because of the judgment that the elected government was able to clear policy decisions like giving free power to those using under 200 units, free bus riders for women and doorstep delivery of ration.

Does the L-G enjoy no discretionary power under the current arrangement?

• Article 239AA(4): The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA(4). 
• 2018 SC Verdict & Article 239AA(4): The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the Supreme Court verdict to keep the L-G in the dark about its decisions as that would prevent him from taking informed decisions on whether to invoke Article 239AA(4) or not. 
• SC on invoking 239AA(4): But the SC had also categorically pointed out that the L-G “should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President”.

What will change if the amendments are cleared by Parliament?

• Delhi Chief Minister Arvind Kejriwal said the Bill, which “seeks to drastically curtail powers of the elected government”, is “against” the Supreme Court judgment.
• The amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.
• The Bill seeks to add a provision in the original GNCTD Act, 1991, barring the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.
• By making it mandatory for the elected government to route all its files through the L-G, the amendments will essentially take away the government’s autonomy and the dream for full statehood for the state.

Connecting the dots:

• Power tussle in Puducherry: Between Lt. Governor and Chief Minister