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Why The Recent Amendment To The Government Of National Capital Territory Of Delhi Act, 1991 Is Legally Infallible

The national capital belongs to the nation as a whole, was the recommendation given by Balakrishnan committee in 1989 when the question of providing full- statehood to Delhi was being deliberated upon. Pursuant to this, an amendment was introduced in the Constitution of India, 1950 (hereinafter Constitution) through which Articles 239 AA and 239 AB were inserted via 69th amendment to the Constitution, under CHAPTER VIII- UNION TERRITORIES, where special provisions with respect to Delhi were elucidated. Empowered by this provision, the Government of National Capital Territory of Delhi Act, 1991 (GNCTD Act, 1991) was enacted by the Parliament to manage the affairs of the national capital.

Amendment To The Legislation
Recently, the central government introduced an amendment to the aforesaid legislation (Government of National Capital Territory of Delhi (Amendment) Act, 2021) (hereinafter Amendment Act) which aims to further define the responsibilities of the elected government and Lieutenant governor of Delhi in 2021. Vide the Amendment Act, the definition of government has been referred to as Lieutenant Governor (LG) and several discretionary powers with regard to implementation of administrative decisions or framing of laws with respect to the National Capital Territory of Delhi have been vested within him which has created a furore within the elected government of Delhi contending that the aforementioned amendment has usurped their powers and the same is against the basic tenets of a Democratic system of governance.

Interpretation Of The Apex Court Over Previous Jurisdictional Tussle

Previously, the matter had been raised before the Supreme Court of India in 2018 (Government of Delhi versus Union of India (2018) 8 SCC 501) wherein the apex court had delved into various constitutional aspects and the Court had reached to a conclusion that the LG is the administrator of the impugned territory, who is appointed by the president and he looks into the matters of NCT of Delhi on behalf of the President. It has been explicitly mentioned in para 362 of the judgment that the NCT embodies the character of a capital city, a symbolism of national governance, and circumstances pertaining to government of NCT may have a direct bearing on the welfare of the nation. More importantly, since 12th December 1912, the date when Delhi was instituted as the capital of India, it has been under the governance of the administrator appointed by the President which was also duly taken note of by the five- judge bench in this case.

The Need For Amendment In Gnctd Act, 1991 As Cited By The Central Government

According to the Ministry of Home Affairs, which released the Statement of Objects and Reasons of the Amendment Act stated that Section 44 of GNCTD Act 1991 deals with the conduct of business and there is no structural mechanism for effective time-bound implementation of the said provision. Also, there is no clarity as to what proposal or matters are required to be submitted to LG before issuing orders thereon because Section 44 of the 1991 Act clearly states that all the executive actions of the LG, whether taken on the advice of his ministers or otherwise shall be expressed to be taken in the name of LG.

A Bare Perusal Of Article 239-Aa Of The Constitution

Moreover, on a bare reading of Article 239-AA (3) of the Constitution, it can be evinced that even though legislative powers except for police, public order and land have been expressly conferred upon the legislative assembly i.e. the elected government, but the Parliament has been given overriding powers to legislate over such matters on which the state is empowered to make laws enumerated in the State and Concurrent list envisaged in the Seventh Schedule of the Constitution.

Hence, it can be said that the Amendment Act is legally infallible, but with due regard to the Constitutional Morality, which the founding father of our constitution, Dr. Bhimrao Ambedkar ascribed to as strict adherence to the principles envisaged in the Constitution, a harmonious system of governance wherein the LG pays adequate heed to the aid and advice tendered by the Council of Ministers of the elected government of Delhi would be a det´┐Żnte.

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