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Written by: Upasana Dash (Intern)
Edited by: Anubhav Yadav (Content Head & Developer)

The central government on Monday, 22nd March, 2021 launched The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 in Lok Sabha. Bringing back the conflict on the distribution of powers between the elected government and the Lieutenant Governor (LG). The issue which was fundamental to the ruling AAP’s periodic run-ins with the BJP-led Centre during much of its first term, was taken up by a constitution Bench of the Supreme Court, which titled the scales in favour of the elected government through its July 4, 2018 judgement.

The Bill contains as follows;

In the statement “objects and reasons” section, the Centre declares that the Amendment Bill tries to give effect to the Supreme Court’s interpretation. And it “further defines” the responsibilities of the elected government and the Lt Governor in line with the Constitutional scheme. Among the major suggested amendments, one makes it absolutely clear that the term “government” in any law made by the Legislative Assembly shall mean the LG. This, fundamentally, gives effect to former LG Najeeb Jung’s 2015 statement that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution.” The Bill adds that the LG’s opinions shall be prevailed before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

The Purpose of the 1991 Amendment Act

Delhi’s current status as a Union Territory with a Legislative Assembly is a result of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution. The GNCTD Act was passed concurrently to boost the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital.

In 2018 judgement, the five-judge Bench had held that the LG’s concurrence is not essential on issues other than police, public order and land. It had added that resolution of the Council of Ministers will, however, have to be communicated to the LG. “It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideas of representative governance and democracy conceived for the NCT of Delhi by Article 239 AA of the Constitution”.

The LG was bound by the aid and advice of the council of ministers, it had said. It had also pointed out that the elected government must keep in mind that Delhi is not a state. Inspired by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the LG before the execution of any decision.

It had been keeping the LG alongside of all administrative developments, but not certainly before implementing and executing any decision. The amendment, if cleared, will force the elected government to take the LG’s advice before taking any action on any cabinet decision. The LG does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA. The Delhi Law Secretary had in 2019 written in an international memo that the elected government cannot use the Supreme Court judgement to keep the LG in the dark about its decisions as it would prevent him from taking informed decisions on whether to invoke Article 239AA or not. But the Supreme Court had also precisely pointed out that the LG “should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.”

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