BACKGROUND

Powers of Lieutent Governer: Increased in NCR: National Capital Territory of Delhi (Amendment) Act, 2021 passed by Lok Sabha

Lok Sabha and Rajya Sabha have passed the National Capital Territory of Delhi (Amendment) Act, 2021. The Bill amends the Government of National Capital Territory of Delhi Act, 1991. The new bills provide a framework for the functioning of the Legislative Assembly and the Government of the National Capital Territory of Delhi. The Bill amends certain powers and responsibilities of the Legislative Assembly and the Lieutenant Governor.

The bill was introduced in Lok Sabha on March 15, 2021, and passed on March 22, 2021. Rajya Sabha passed it on March 24, 2021. The President had given his assent to the National Capital Territory of Delhi (Amendment) Act, 2021 on March 28, 2021. The Act has been made effective from April 27 2021 through a Gazetted notification. The Act has not been notified so far.

THE NCT ACT, 1991

It may be recalled that the Government of National Capital Territory of Delhi Act, 1991 (1of 1992) was enacted to supplement the provisions of the Article 239AA of the Constitution of India relating to the Legislative Assembly and a Council of Ministers for the National Capital Territory of Delhi and for matters connected therewith or incidental thereto. Section 44 of the Act deals with the conduct of business and there is no structural mechanism provided in the Act for effective time-bound implementation of said section. Further, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing an order thereon.

The Constitution Bench of the Hon’ble Supreme Court, in its judgment dated the 04th July 2018 Govt. of NCT Vs. The Union of India, and Division Bench of the Hon’ble Supreme Court, in its judgment dated the 14th February 2019, has interpreted the provisions of Article 239AA of the Constitution relating to the structure of governance in the National Capital Territory of Delhi.

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) Act, 2021 seeks, inter alia, to clarify the expression “Government”, which in the context of legislation 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 the 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.

Article 239AA of the Constitution has special provisions with respect to Delhi.

SPECIFIC CHANGES

The Act has been discussed on the PRS website to bring about the following changes:

• Restriction on laws passed by the Assembly

The Bill provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (LG).  The Constitutional provision in article 239 AA is “ The Legislative Assembly shall have the power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.”

• Rules of Procedure of the Assembly

The Bill allows the Legislative Assembly to make Rules to regulate the procedure and conduct of business in the Assembly.  The Bill provides that such Rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha. Article 239AA says “ If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void”.

• Inquiry by the Assembly into Administrative Decisions

The Bill prohibits the Legislative Assembly from making any rule to enable itself or its Committees to:

(i) consider the matters of the day-to-day administration of the NCT of Delhi and

(ii) conduct an inquiry in relation to administrative decisions.

Further, the Bill provides that all such rules made before its enactment will be void. This is a new provision when compared to the National Capital Territory of Delhi Act, 1991.

• Assent to Bills

The Act requires 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 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.

Earlier National Capital Territory of Delhi Act, 1991. Provided the following on assent to the bills “ The Lieutenant Governor shall not assent to but shall reserve for the consideration of the President, any Bill which,—

(a) in the opinion of the Lieutenant Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is, by the Constitution, designed to fill; or

(b) the President may, by order, direct to be reserved for his consideration; or

(c) relates to matters referred to in sub-section (5) of section 7 or section 19 or section 34 or sub-section (3) of section 43.

• 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 Bill adds that on certain matters, as specified by the LG, his opinion must be obtained before taking any executive action on the decisions of the Minister/ Council of Ministers. Earlier the Government of National Capital Territory of Delhi Act, 1991 had only general provisions in respect of discretionary powers of LG.

CONCLUSION

Basically, the Lieutenant Governor has more say in day to day administrative matter and that of the Legislative Assembly of NCR.

The Government said the bill aims at promoting harmonious relations between the legislature and the executive in the national capital. It said it was a technical necessity as the Supreme Court, High court and other forums were discussing the ambiguity at different times and issuing the orders on the NCT Act 1991.

Therefore, the Government said, it’s the responsibility of Parliament to clear confusion and ambiguity.   The Government further said, the Government has to keep consulting the LG as the administrator. In case of any difference of opinion on any matter between LG and the Delhi government, the Government said that the LG would refer the same to the President of India.

It may be recalled that the administration of the National Capital Territory of Delhi is mainly based on three provisions – Article 239A of the Constitution, the GNCTD Act, 1991 and Transaction of Business of the GNCTD Rules, 1993. The administration of Delhi remained smooth from 1991 till December 2013 but in the year 2015 certain conflict of rules were raised with regard to the interpretation of certain provisions of the Constitution. As Delhi is the National Capital Territory, the Government of India and the Parliament are duty-bound to remove the administrative ambiguity on this law through appropriate legislative measures. This Bill is a result of those proceedings and judicial interpretations.

ABOUT THE AUTHOR
SANJAY CHAVRE
Senior Intern, Indian Law Watch
Mechical Engineer with MBA; LL.B ( First Semester) in Maharshi University of Information Technology, Maharshi Law School , NOIDA. 
He retired in Aug 2020 as Senior Development Officer in Ministry of Heavy Industry, Govt of India . Previously he was in charge of investment promotion and international cooperation between Europe and India in the Ministry of Industry and Commerce. Mr. Chavre has more than 37 years of work experience in the Government mostly in technology/ industrial development and promotion. He has been focal in raising institutions of industrial infrastructure and technology development in diverse fields like locks, stones, machine tools, auto components, tool rooms, Environment management facilities, quality & productivity improvement, manufacturing technology etc.

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