NCT Bill Passed: Why Delhi Citizens Will Be the Real ‘Losers’

For all practical purposes, Delhi may no longer have an elected government and will be ‘administered’ by the LG.

Image of senior SC lawyer Indira Jaising used for representational purposes.

(Photo: Arnica Kala / The Quint)

(This opinion piece was first published on 19 March 2021 and is being republished in light of the NCT Bill being passed in the Rajya Sabha on 24 March. Having cleared both the Houses of Parliament, the Bill is set to become law.)

What appears to be an innocuous Bill, in fact, seeks to introduce a complete change in the way the National Capital Territory (NCT) of Delhi is administered. The Bill introduced in parliament conceals more than it reveals, since it contains no substantive reference to the purpose of the Bill. Indeed, this Bill — in its Statement of Objects and Reasons — turns the issue on its head and undermines not only the 2018 judgment of the Supreme Court of India, but also certain provisions of the Constitution of India itself. In particular, Article 239AA.

The Statement of Objects says that the Bill is intended to give effect to the judgment of the Supreme Court. But in fact, it does the very opposite.

Paragraph 3 of the Statement of Objectives and Reasons is as follows:

“In order to give effect to the interpretation made by Hon'ble Supreme Court in the aforesaid judgments, a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression "Government", which in the context of legislations to be passed by the Legislative Assembly of Delhi, shall mean the Lieutenant Governor of the National Capital Territory of Delhi, consistent with the status of Delhi as a Union territory to address the ambiguities in the interpretation of the legislative provisions. It further seeks to ensure 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 select category of cases and also to make rules in matters which incidentally encroach upon matters falling outside the preview of the Legislative Assembly. It also seeks to provide for rules made by the Legislative Assembly of Delhi to be consistent with the rules of the House of the People.”

Surprisingly, the word ‘government’ is nowhere defined in our various statutes. However, what this Bill seeks to do is very clearly go against our established notions of what is a ‘government’.

We are accustomed to believing that the government consists of the Executive, appointed from amongst our elected representatives in the Legislative assembly, and that it commands the confidence of the majority of the house. This Bill, in Section 2 (3), states that the “expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.”

The Lieutenant Governor of the National Capital Territory of Delhi is not elected, but is instead nominated in a purely political process by the President of India, acting on the aid and advice of the Union Cabinet of Ministers. He is therefore, a purely political appointee.

Republicanism & Federalism Destroyed

The National Capital Territory of Delhi enjoys a special status in the federal scheme of our nation. It is the Capital of India, but it also has an elected legislative assembly for which all the registered voters in Delhi vote. The Aam Aadmi Party (AAP) swept the polls in 2020, and went on to form the Government of Delhi. That alone can be defined to be the ‘government’ of Delhi.

Article 239AA of the Constitution of India situates the governance structure of Delhi within the four corners of the Constitution itself, making Delhi a part of the federal unit of the country with an elected government of its own.

The Constitution, in the Seventh Schedule, distributes law-making powers between the states and the union, and has a Concurrent List, where both the states and union can make laws. Executive powers follow legislative powers.

In other words, in every matter in which the Government of Delhi has the power to make laws, it also has the Executive power to execute these laws.

National Capital Territory of Delhi: Exceptions to Legislative Power Under State

The crux of any governance is the process of implementation of legislation, and without the power to implement laws, any government will be reduced to a paper tiger.

It is for this reason that the law has clearly established that, where there is legislative power, there is executive power.

The two major exceptions to legislative power under the state, in so far as the National Capital Territory of Delhi is concerned, is police powers and power over land. About this there is no doubt .

The justification for assuming police powers by the union is that Delhi is the seat of the Government of the Union of India, and all major institutions are headquartered there.

In the interest of the sovereignty, safety and security of these institutions, police powers are vested in the Union of India. Similarly, the Government of the National Capital Territory of Delhi has no control over the alienation of land, which is also vested in the Union of India, except the land which is vested in the government of the National Capital Territory of Delhi.

Almost all land in Delhi is vested with Delhi Development Authority which is tasked with coming up with master plans for the development of the city.

The dispute was over the other legislative and executive powers of the Government of Delhi vis-à-vis the powers of the LG. There was no definitive judgment of the Supreme Court interpreting the provisions of Article 239AA of the Constitution, and defining with clarity the relationship between the National Capital Territory of Delhi and the Union of India.

An Obstructive Union Govt Since AAP Assumed Power in Delhi

Over the years, and from 1991 onwards, when the party in power in the National Capital Territory of Delhi and the Union Government was the same, there were relatively minor clashes in the relationship between the two.

But when the Aam Aadmi Party assumed power with a clear social and economic agenda, and the determination to implement it, we saw an obstructive Union Government doing everything in its power to derail the implementation of this agenda. This was achieved mainly through the Lieutenant Governor usurping powers, which, according to the government of Delhi, he did not possess.

Delhi became the capital of India on 12 December 1911. When the Constitution of India came into force on 26 November 1950, Delhi became a Part C state. In 1951, Delhi acquired a legislative assembly.

In 1956, Delhi became a Union Territory, since the distinction between the Part A, B, and C states was abolished.

It was to be administered by an administrator.

A Limited Representative Govt in Delhi

The Delhi Administration Act, 1966 was enacted to provide for a limited representative government in Delhi.

It was in 1991 — pursuant to a demand for full statehood — that Article 239AA was introduced in the Constitution of India via the 69th amendment.

The controversy in the Supreme Court revolved around this article. While the Government of the National Capital Territory argued that it had become a full state in 1991, the Union Government argued that its powers were limited by the Lieutenant Governor, who could veto any decision.

SC’s Historic Decision on Delhi Govt’s Ambit of Powers

In a historic decision, the Supreme Court interpreted the provision consistent with the federal structure of the Constitution of India, and held that, in all matters except police and land, the elected government of Delhi had full powers like any other state to make laws and implement them, except that the LG was to be kept informed about the decisions.

This was consistent with our understanding of democracy and representative governance, and above all, constitutional morality drawn from the spirit of the Constitution which was based on republicanism.

The apex court held that the Lieutenant Governor was bound by the ‘aid and advice’ of the Cabinet of the state, and that all that the state was required to do was to keep the LG informed of the decisions taken by the state.

In the event of a serious difference of opinion on any particular issue, the Lieutenant Governor would have to refer the matter to the President of India.

Since the 2018 judgment of the Supreme Court, the Delhi government has not claimed these powers.

Whiter Cooperative Federalism?

After 2018, we saw a marked reduction in the clashes which occurred between the Government of Delhi and the Union Government, perhaps because the judgment delivered by the Supreme Court clarified a lot of issues. One thing was clear — it was expected that the National Capital Territory of Delhi and the Union Government would function on the principles of cooperative federalism — each operating in its own domain.

The sudden introduction therefore of the Bill — seeking to amend the National Capital Territory of Delhi Act, 1991 — comes as a shock and a surprise to many.

The most dramatic provision of the proposed amendment is to define the ‘government’ to mean ‘Lieutenant Governor’. If this amendment goes through, the legislative assembly of Delhi will be turned into a rubber stamp authority for the Union Government.

One has to wonder then, how and why an electoral process is gone through based on adult franchise.

Undoing Supreme Court’s Judgment on Delhi Govt’s Powers

The proviso to Section 33 proposed to be introduced takes away day-to-day admin from the hands of the Delhi Government. The amended Section 33 shall read as follows:

“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.”

Additionally, a new proviso is added to Section 44 to undo to the judgment of the Supreme Court, which may also be considered an indirect amendment of Art 239AA of the Constitution of India. The amended proviso shall read as follows:

“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.”

The NCT Bill, If Passed, Will Violate the Spirit of Republicanism

For all practical purposes, Delhi will no longer have an elected government and will be ‘administered’ by the LG.

The politics behind the law appear to be clear. The social and economic agenda of the Delhi government has met the aspirations of the people of Delhi. Its reforms in the realm of education have been appreciated worldwide. In terms of health, its Mohalla Clinic schemes have been found to substantially improve the health of the people.

Doorstep delivery schemes have been a major attraction. All these programs now stand compromised unless they have the consent of the Lieutenant Governor, who acts on behalf of the Central government.

It is only a matter of time before the law — if passed — will be challenged on the grounds that it amounts to a disguised amendment of Article 239AA of the Constitution of India, and violates the spirit of republicanism — leaving the citizens of Delhi — who have voted for this government — out in the cold, and at the mercy of the Central government.

Further Curbing an Already-Curbed Delhi Govt

The already truncated powers of police and land, which are two major issues which impact the welfare of the people, are further truncated, and the Delhi government will no longer have any control in health, education, and distribution of essential services if the Lieutenant Governor chooses to disagree with the decisions of the elected government of the National Capital Territory.

The losers in this game will be the ordinary citizenry.

(Disclosure: The author was part of the legal team of the Delhi government in the Supreme Court in 2018.)

(Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India. She tweets @IJaising. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)