Amended GNCTD Act ‘disenfranchised’ Delhiites, violated principle of federalism: Delhi govt to SC

The amendment of the provisions is an attempt to treat the LG as the default administering authority over Delhi, it said

The amended GNCTD Act and the Transaction of Business Rules have “disenfranchised” Delhiites, and violated the principle of federalism by diminishing the constitutionally guaranteed powers and functions of the elected legislative assembly and the council of ministers, the Delhi government has told the Supreme Court in its petition.

The Delhi government, in its plea through Deputy Chief Minister Manish Sisodia, 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 various grounds such as they violated the doctrine of basic structure, separation of power as the Lt Governor has been bestowed with more authority.

A bench headed by Chief justice N V Ramana on Monday assured the Delhi government that it will soon order listing of the writ petition of the Aam Aadmi Party-led government for hearing.

The Delhi government, instead of going to the High Court, straightaway knocked the doors of the top court this time alleging that the amended provisions violated the five-judge bench judgement on the Delhi-Centre power row.

In the 2018 judgement, the Constitution bench had unanimously held that the Lieutenant Governor of Delhi is bound by the “aid and advice” of the elected government and both needed to work harmoniously with each other.

Also read: Power tussle between Delhi govt, LG: SC to list plea for hearing against GNCTD (Amendment) Act

The petition, which has made the Ministry of Home Affairs and the Law Ministry as parties, said, “the Amendment Act has in effect disenfranchised the people of Delhi, and violated their political rights under the Constitution. For these reasons, it is respectfully submitted that the impugned Provisions contravene both Article 239AA of the Constitution, and the judgment of this Court in Govt of NCT of Delhi versus Union of India”.

“The provisions inserted by the Amendment Act which are impugned herein 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,” it said.

The provisions diminish the constitutionally guaranteed powers and functions of the elected legislative assembly and council of ministers of the NCT of Delhi, overturn the constitutionally stipulated balance between the Government of the National Capital Territory of Delhi and the Union Government, and “impermissibly overrule the judgment of the Constitution Bench of this Court”, the plea said.

Referring the changes made in the law and Rules, the plea said they “impermissibly 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 executive to account, a core function of any legislature.

It referred to Article 239AA and said it is a unique provision in the Constitution which guarantees Union Territory Delhi, a parliamentary form of democracy in the Westminster model.

“Essential features of this model include an elected legislature and a responsible executive, each one competent to act within their demarcated spheres of authority. Additionally, by virtue of Delhi’s status as the national capital, a nominee of the Union Government - the Lieutenant-Governor - plays a limited role in the constitutional scheme under Article 239AA,” it said.

The apex court’s judgement had clarified that the provisions of Article 239AA - including those concerning the powers and functions of the LG - must be interpreted in light of the constitutional commitment to federalism, and to representative democracy, the plea said.

“This court interpreted Article 239AA so as to place limitations upon the power of the LG, in order to ensure that the default situation would remain that of a parliamentary democracy with an elected legislature and a responsible executive, while a certain space was retained for exceptional circumstances, where the LG would be required to play a limited role,” it said.

The amended provisions impermissibly reverse this delicate constitutional balance, as set out and interpreted by court in the 2018 judgement, it said.

The amendment of the provisions is an attempt to treat the LG as the default administering authority over Delhi, by equating the position of the LG with that of the “government”, it said.

The new provisions authorises “the LG to withhold consent from Bills that, in his judgment, may be ‘incidentally’ outside the scope of legislative assembly’s legislative powers (even though such a bill, if passed into law, would be constitutionally valid under the doctrine of pith and substance), and by empowering the LG to interfere in the day-to-day administration of the NCT by introducing the requirement of obtaining the LGs views before executing a decision of the Council of Ministers under any bunch of laws that are to be specified by LG, through general orders,“ it said.

The amended Transaction of Business Rules dilute and divest the executive powers of the elected government of NCT of Delhi by transferring these powers to the LG and the Secretaries in the Govt. of NCT of Delhi in derogation of representative form of Government as envisaged under Article 239- AA of the Constitution, it said.

The Government of National Capital Territory (GNCTD) Amendment Act, 2021 has come into force after being passed by the Lok Sabha and Rajya Sabha on March 22 and March 24, respectively.

“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,” the plea said.

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