Supreme Court to hear Kejriwal Government's plea against Centre's amendments to GNCTD Act

  • Ratna Singh
  • 01:45 PM, 15 Sep 2021

The Supreme Court will hear the Kejriwal Government's plea which has sought quashing of the four amended sections of the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’.

On Monday, the CJI NV Ramana led bench said that the bench shall list the matter, after Senior Advocate Abhishek Manu Singhvi appearing for Delhi Government mentioned the case before Top Court.

The Delhi Government has averred before Top Court that the Centre, through its amendments, has “given more power to the Lieutenant Governor than the elected government of the people of Delhi” according to a press release in public domain.

Thereby, it has challenged the constitutionality of Sections 21, 24, 33, 44 of the Government of National Capital Territory of Delhi Act, 1991 and Rules 3, 6A, 10, 14, 15, 19, 22, 23, 25, 47A, 49, 52 and 57 of Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.

As per the plea, in 2016, disputes and differences arose between the LG and the Delhi Government in respect of powers, duties and governance and subsequently the matter was taken to court.

Thereafter, the Constitutional Bench of the Supreme Court had in that matter held that the Council of Ministers shall inform all its decisions to the Lt Governor but that does not mean that the concurrence of the Lt Governor is required.

“Yet on 15th March 2021, the Central Government introduced the GNCTD Act Amendment Bill in the Lok Sabha; this bill received the assent of the President and became the Government of National Capital Territory of Delhi (Amendment) Act 2021, on 28th March 2021,” contended the AAP government in their plea.

As stated in plea, the Transaction of Business of Government of National Capital Territory of Delhi (Amendment) Act came into force in July and also that the new GNCTD Act diminishes the constitutionally guaranteed powers and functions of the elected legislative assembly and council of ministers of Delhi.

The Delhi Government has contended in the petition, “that amended sections of the GNCTD Act diminish the constitutionally guaranteed powers and functions of the elected legislative assembly and council of ministers of Delhi; overturn the constitutionally stipulated balance between the Delhi Government and the Union Government; and overrule the judgment of the Constitution Bench of the Supreme Court in Government of NCT of Delhi v Union of India, (2018)”.

The plea further averred that it is, Centre’s attempt to treat the LG as the ‘default administering authority over the NCT of Delhi’.

The Delhi Government in its petition has stated that,

“the amendments by the Centre are an attempt to treat the LG as the ‘default administering authority over the NCT of Delhi’, by equating the position of the LG with that of the “government”, by authorising the LG to withhold consent from bills that, in his judgment, may be “incidentally” outside the scope of legislative assembly’s legislative powers, and by empowering the LG to interfere in the day-to-day administration of the Delhi Government by introducing the requirement of obtaining the LGs views before executing a decision of the Council of Ministers.”

It has been further stated that, the new laws encroach on the scope of the Delhi Legislative Assembly’s core legislative functions by interfering with the power of the Assembly to frame its own rules of business or to hold the Government to account, a core function of any legislature.

“Centre disenfranchised the people of Delhi, and violated their political rights under the Constitution,” stated the plea.

The Delhi Government in the plea averred that, it has maintained a firm stance on the fact that the Amendment Act has, in effect, disenfranchised the people of Delhi, and violated their political rights under the Constitution.

“The provisions inserted by the Amendment Act violate the principles of federalism, separation of powers, representative democracy, and the rule of law, which are essential features of the Constitution.Therefore, the Amendment Act violates the “Basic Structure” of the Constitution,” the petition stated.

Further, the Delhi Government has strongly contended against the Transaction of Business of the Government of National Capital Territory of Delhi Amendment Rules and stated that they dilute and divest the executive powers of the elected government of Delhi by transferring the powers to the LG and the Secretaries in the Delhi Government in derogation of representative form of Government as envisaged under Article 239-AA of the Constitution of India.

The Delhi Government has sought the following reliefs –

  • To pass a direction, order or writ declaring and quashing Sections 21, 24, 33, 44 of the Government of National Capital Territory of Delhi Act, 1991 as amended by the Government of National Capital Territory of Delhi (Amendment) Act, 2021 as unconstitutional and ‘ultra vires’ the Constitution of India.
  • To pass a direction, order or writ declaring and quashing Rules 3, 6A, 10, 14, 15, 19, 22, 23, 25, 47A, 49, 52 and 57 of Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, as amended/inserted by the Transaction of Business of the Government of National Capital Territory of Delhi (Amendment) Rules, 2021 as unconstitutional.

According to the present plea,

The Amendment Bill amends powers and responsibilities of the Legislative Assembly and the Lieutenant Governor upon the following sections:

i. Restriction on laws passed by the Assembly: The Amendment Bill provides that the term “government” referred to in any law made by the Legislative Assembly shall mean LG. This is done by introducing a new clause (3) to Section 21 of the GNCTD Act, 1991.

ii. Rules of Procedure of the Assembly:* Section 33 of the GNCTD Act, 1991 allows the Legislative Assembly to make Rules to regulate the procedure and conduct of business in the Assembly. The Amendment Bill provides that such Rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha and that any rule inconsistent will be void.

iii. Inquiry by the Assembly into administrative decisions: The Amendment Bill prohibits the Legislative Assembly from making any rule to enable itself or its Committees to consider the matters of day-to-day administration of the NCT of Delhi and conduct any inquiry in relation to administrative decisions. Further, the Amendment Bill provides that all such rules made before its enactment will be void.

iv. Assent to Bills: Section 25 of the GNCTD Act permits the LG to reserve certain Bills passed by the Legislative Assembly for the consideration of the President. These Bills are those: (i) which may diminish the powers of the High Court of Delhi, (ii) which the President may direct to be reserved, (iii) dealing with the salaries and allowances of the Speaker, Deputy Speaker, and members of the Assembly and the Ministers, or (iv) relating to official languages of the Assembly or the NCT of Delhi. The Amendment Bill requires the LG to also reserve those Bills for the President which “incidentally” cover any of the matters outside the purview of the powers of the Legislative Assembly

v. LG’s opinion for executive actions: The Act specifies that all executive action by the government, whether taken on the advice of the Ministers or otherwise, must be taken in the name of the LG. The Amendment Bill by inserting a proviso to Section 44(2) of the Act, adds that on certain matters, as specified by the LG, under any law in force in the NCT of Delhi, his opinion must be obtained before taking any/ executing any decision of the Minister/ Council of Ministers.

The amendments made in the The Transaction of Business of the Government of National Capital Territory of Delhi (Amendment) Rules, 2021 :

i. Post amendment, Rule 23 read with Rules 10, 14, 25, 47A and 57, now provides that no executive action relating to the matters set out in Rule 23 and matters which the LG may determine can be implemented ‘before the opinion of the LG is obtained’.

ii. Amendment to Rule 49 has significantly accelerated the trigger for LG to refer a matter to the Central Government and thus invoke the LG’s wide ranging powers to interdict an executive action under Rule 51. Further, introduction of a deeming provision in Rule 49 now allows for any and every matter to be referred by the LG to the Central Government.

iii. Amendments to Rules 6A, 19, 52 and 57 have vested direct executive authority in the Secretaries of the Govt. of NCT of Delhi, which authority can be exercised by them without reference to, and even in derogation of the orders of, the Council/Ministers. This authority includes, authority to determine the legality of the actions of the Council/Ministers and not implement the actions if, in the opinion of the concerned Secretary, the actions are unlawful.