The Hindu Explains | What has the Bill on the National Capital Territory proposed, and how will it impact the administration?

How did it come about? Why does it matter?

Updated - March 21, 2021 12:21 pm IST

Published - March 21, 2021 03:03 am IST

The story so far: The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was introduced by the Ministry of Home Affairs in the Lok Sabha on Monday. The Bill states clarification of the expression “Government” and addressing “ambiguities” in legislative provisions as its core objectives. Underlining Delhi’s status as a Union Territory, modifications have been proposed to four sections of its three-decade-old predecessor, the Government of National Capital Territory of Delhi Act, 1991 . The legislation was enacted to supplement Constitutional provisions for the Legislative Assembly and a Council of Ministers for the NCT of Delhi in 1992.

What are some of the changes proposed?

The amendments, according to the Bill, seek to promote “harmonious relations between the legislature and the executive” and provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha. The Bill also seeks to define the responsibilities of the elected government and the Lieutenant Governor along the constitutional scheme of governance of the NCT interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.

Editorial | Delhi undermined: On Centre’s bid to run the National Capital Territory

The amendments also seek to ensure that the Lieutenant Governor is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to Clause (4) of Article 239AA of the Constitution. The clause provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.

How did it come about?

The genesis of the Bill lies in the administrative tug of war between the Aam Aadmi Party (AAP) led-Delhi government and then Delhi Lieutenant Governor (L-G) Najeeb Jung immediately after the former came to power for a second stint in 2015. The L-G refused to send files regarding three reserved subjects — land, police and public order — to the Chief Minister’s office.

Between early 2015 and mid-August 2016, several orders issued by the Delhi government related to the matters such as transfer of bureaucrats, setting up of Commissions of Inquiry and the administration of the Anti-Corruption Branch (ACB), were either declared void or reversed by the L-G citing procedural lacunae ranging from lack of approval from his office to not being constitutionally empowered to take such decisions.

Also read | Jurisdictional conflict in the running of Delhi

The issue of which entity was “the competent authority” was taken by the Delhi government to the Delhi High Court which, in August 2016, held that the L-G had “complete control” of matters related to the NCT and “nothing will happen without the concurrence of the L-G.” However, the judgment held that the L-G was bound by the aid and advice of the Council of Ministers on some matter. The Delhi government then moved the Supreme Court.

On July 4, 2018, a five-judge bench of the Supreme Court, noting that there was no room either for anarchy or absolutism in a democracy, held that “real authority to take decisions lies in the elected government” . The NCT’s government, it also ruled, needed only to inform the LG of its “well-deliberated” decisions instead of obtaining his “concurrence” in every issue of daily governance. The matter, however, did not end there.

On February 14, 2019, a two-judge bench hearing the issue of Services — the transfer and posting of bureaucrats — and power over the ACB delivered a split verdict . This verdict stated that while the L-G was free to form an opinion on any matter “any” did not mean in every “trifling matter” and the L-G should not intervene routinely but only in matters fundamental to Delhi. It also held that the L-G should not hold on to files but honour the wisdom of Delhi’s Cabinet of Ministers. Two years later, on February 3, 2021, the Union Cabinet approved the Bill for introduction in the Parliament during the Budget Session.

Why does it matter?

Some experts believe the amendments will turn the administrative clock of the Capital back by several decades and take it back to the era of the Delhi Metropolitan Council, mainly considered a municipal body, and “snatch” the democratic and Constitutional right of the city’s citizens to vote those they deem fit to administer them. Other experts argue that the elected government of Delhi had always been a local administrative body to be headed by the L-G as an administrator. Experts on both sides of the argument agree that the proposed Amendment has put paid to the question of Statehood for Delhi which had been demanded by each of the Capital’s major political players including the AAP, the BJP and the Congress.

The Council was the predecessor of the Delhi Legislative Assembly and functioned between 1966 and 1990 as a deliberative wing of the Delhi Administration. The head of the Council was the Administrator, known initially as the Chief Commissioner, but following the passing of the Delhi Administration Act in 1966, the post was designated as Lieutenant Governor. The Chief Executive Councillor functioned as the Leader of the House in the Council and the post was akin to the present post of the Delhi Chief Minister. The individual occupying it, along with three other Executive Councillors, was appointed by the President to “aid and advise” the L-G on matters in the State or Concurrent List.

Also read | Changes to NCT Act revive power tussle

The new Bill states that there was no structural mechanism provided in the 1991 Act for effective and time-bound implementation of Section 44, which deals with the Conduct of Business, which the Bill will provide. It will also aim to provide clarity about what proposal or matters are required to be submitted to the L-G before issuing orders on them and give effect to the interpretation of the structure of governance in the NCT by the Supreme Court by clarifying the expression “Government” in the context of legislation to be passed by the Legislative Assembly of Delhi to “mean the Lieutenant Governor” as consistent with the status of Delhi as a Union Territory.

The immediate impact of the Bill will be to render void several committees created in the Delhi Legislative Assembly on administrative issues over the last six years allowing direct communication between MLAs and bureaucrats.

Also read | Kejriwal appeals to Centre to take back bill on LG powers

What lies ahead?

The Delhi government has termed the Bill an instrument being used by the BJP-led Centre to curtail its powers through unfair means. It has also alleged that the Bill is a way to stall the implementation of the “Kejriwal Model” of governance, which focusses heavily on the health, education and social welfare sectors, from making progress in other parts of the country.

In addition to appealing to the Centre to withdraw it, the AAP has already hit the streets alleging that it renders the electoral will of the people of the city useless. In the meantime, the Delhi government is, according to sources, preparing to challenge the Bill in court.

On its part, the opposition BJP has welcomed the Bill on the grounds that the AAP government had been functioning in “unconstitutional ways”. Parliament, the BJP argues, is going to fulfil the directive of the Supreme Court to amend the NCT of Delhi Act to remove constitutional ambiguities between the Delhi Government and the Lieutenant Governor and quicken “the pace of development” in the city.

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