The President of India on March 28, 2021, gave his assent to the Government of National Capital Territory of Delhi (Amendment) (GNCTD) Act, 2021 that provides a framework for the functioning of the legislative assembly and the government of the National Capital Territory (NCT) of Delhi. It amends the Government of National Capital Territory of Delhi Act, 1991 to bring certain changes in powers and responsibilities of the legislative assembly and the lieutenant governor. The bill was introduced in Lok Sabha on March 15, 2021 and was passed by Lok Sabha on March 22 and by Rajya Sabha on March 24, 2021.
As per the legislation, the ‘government’ in Delhi means the lieutenant governor and the city government will now be required to seek the approval of the lieutenant governor before commencing any executive action. It directs the Delhi government to send its legislative proposals to the lieutenant governor at least a fortnight in advance. The lieutenant governor can refer a bill to the Centre in case of disagreement with the elected government of Delhi. One of the provisions of the act empowers the lieutenant governor to take an immediate decision if the issue is deemed to be of urgent nature, even if the matter is pending with the president.
Under the amended act, the lieutenant governor is required to reserve certain bills passed by the legislative assembly for the consideration of the president. Such bills include bills pertaining to—(i) reducing the powers of the High Court of Delhi; (ii) salaries and allowances of the speaker, deputy speaker, and members of the assembly and the ministers; or (iv) official languages of the assembly or the NCT of Delhi. Besides, such bills as are directed to be reserved by president and those which incidentally cover any of the matters outside the purview of the powers of the legislative assembly are also needed to be reserved for president’s consideration.
According to the statement of objects and reasons of the bill, it is aimed at giving effect to the 2018 interpretation of the Supreme Court which said that the city government need not obtain the lieutenant governor’s concurrence of every issue of day-to-day governance. The statement of objects further says that the bill will promote cordial relations between the legislature and the executive, and clearly delineate the responsibilities of the elected government and the lieutenant governor, in conformity with the constitutional scheme of governance of the NCT of Delhi, as interpreted by the Supreme Court.
Almost all the opposition parties opposed the legislation, stating that it was against the Constitution and the very spirit of cooperative federalism. The central government defended the amendments claiming that the changes have been made to the original act to address certain ambiguities in the 1991 law. It denied that the amended act sought to take away the powers of the elected government of the NCT of Delhi and claimed that the amendments were rather made on technical grounds to bring transparency and clarity in governance in Delhi, and to improve public accountability.
Views of Analysts
According to P.D.T. Acharya, former secretary general of Lok Sabha, the bill suffers from serious constitutional infirmities. He said, “It seeks to nullify the July 2018 decision of the constitution bench of the Supreme Court without changing the basis of that decision. It is against the law laid down by the Supreme Court. The definition of the government can only be the elected government”.
As per the opinion expressed by Niranjan Sahoo in an article published in the Hindustan Times, the statement and object of the bill says the amendment will give effect to the Supreme Court’s judgment in 2018.
However, an analysis of the 2018 verdict indicates that the proposed bill is a contravention of the spirit of an important judgment. The five-judge bench dealt with the ambiguous Article 239AA of the Constitution, which allows lieutenant governor to refer any matter in case of differences to the President of India, effectively allowing the Centre to have a veto. It gave prominence to the Delhi government over lieutenant governor on all issues other than reserve subjects; land, police and public order. Supporting greater autonomy for the elected government, Justice D.Y. Chandrachud observed, “In a democratic form of government, the real power must subsist in the elected arms of the state”.
The Centre’s move betrays the spirit and sanctity of the 2018 judgment, which, notwithstanding many fine points, was a limited verdict. It avoided venturing into substantive issues of land and policing and the Delhi government’s longstanding demand to have a say in these critical matters.
In an article published in the Hindustan Times, Niranjan Sahoo and Rupak Chaudhary suggest a new governance model for Delhi taking a clue from the governance of capital cities in other federal nations. They say that it is important to recognise two things about Delhi. First, Delhi’s administrative arrangements have been unsatisfactory over the last 20 years. Second, changes resulting from the GNCT amendment are unlikely to improve governance and will make Delhi an outlier with respect to federal capitals. Broadly speaking, there are three ways in which the governance of capital cities in federal countries have been organised. First, some capitals are organised as federal districts (Abuja, Brasilia, Canberra, Washington DC), with varying degrees of federal control over them. Second, some are organised as city-states (Berlin, Brussels, Buenos Aires), where the city government also carries out state functions. The third model is that of a city-in-a-state (Bern, Ottawa) where the capital is a municipality, under the state government. In the latter two models, there may be federal lands within the state or city boundary under federal jurisdiction, but the federal government has no hand in the governance of the broader metropolitan region.
As a union territory, Delhi is best compared with other federal districts. Abuja, Canberra, Brasilia and Washington DC share certain features with Delhi. In structure and form, Canberra and Brasilia are closest to Delhi, with popularly elected governments. While lacking full statehood, governments in both Brasilia and Canberra face no federal encumbrances in the day-to-day business of governance. Furthermore, both these capitals have significant powers over land and public security.
What distinguishes Delhi from other federal districts is sheer size. Its population would subsume the populations of the above-mentioned cities. Its closest peer is Mexico City. In a significant development, Mexico City was upgraded from federal district to the country’s 32nd state in 2016. This was driven by the desire to provide more responsive government for residents.
Among capitals, Delhi’s governing structure is by far the most convoluted with a multiplicity of overlapping sub-national jurisdictions, including the Delhi government, New Delhi Municipal Council, Municipal Corporation of Delhi and Cantonment Board, each supervised by a different agency or government. Further, there are over 100 para-statal institutions involved in providing different services, often duplicating each other’s works in Delhi. An important step towards improving the management of metropolitan region would be to rationalise these bodies.
Decentralisation of decision-making is important. There are alternative ways in which both the central government as well as local authorities can partake jointly in the management of the city. This might be achieved by a two-tier metropolitan authority.
Control over policing has been a major point of contention in Delhi. With the lone exception of Abuja, in other federal districts, the local governments have jurisdiction over at least some aspects of policing.
For Delhi, one option could be to provide municipalities with enforcement powers exercised through community police officers to ensure civil compliance, whereas the Delhi Police deals with criminal issues. The second option might be to transfer the Delhi Police from the union home ministry to the new (jointly managed) regional government, while, as is presently the case, central armed police forces continue maintain security at central assets.
Delhi’s governance needs a new re-imagination. Learning from international examples, and conceptualising a new structure, can be a way forward.
Editorials in Newspapers
According to an editorial published in The Indian Express, the legislation drastically undermines the powers of Delhi’s elected government and virtually upturns a landmark Supreme Court verdict. It required thorough deliberation, even referral to a select committee, as demanded by members of the opposition. That this did not happen speaks of the hubris of the central government, and draws attention, again, to its disturbing tendency of using its majority to steamroll contentious bills—the farm laws, just before this—through parliament.
Delhi’s special position as the country’s capital requires a bold
re-imagination of the federal contract that currently determines its executive and legislative boundaries. On paper, that contract has been skewed against the elected government. But over a substantial period in the past 20 years, the Centre, its representative, the lieutenant governor, and the Delhi government seemed to have developed a working relationship, indeed a partnership at times, whose benefits continue to be felt by the city’s residents—the conversion of the city’s public transport fleet to the environment-friendly CNG, introduction of private players in the power sector, and the Metro. It is true that AAP’s advent on the city’s political scene, its shrill political pitch and its preference for agitational politics over patient negotiations led to a setback in the evolving concord between the Centre and the elected government. However, the Supreme Court verdict of 2018 that removed the ambiguities of the powers of Delhi’s lieutenant governor vis-à-vis its council of ministers inaugurated a period of relative calm.
The new law, by making Delhi’s lieutenant governor synonymous with the city’s government, will reverse the progress made in the past 20 years in the NCT’s quest for statehood, and also be bad news for federalism. The court must step in, and apply to the law the constitutionality test.
An editorial published in the Hindustan Times, while favouring Centre’s stance on the issue of Delhi’s statehood, criticises the amended law as unfair. It states that Delhi is the national capital—and demands for full statehood to Delhi are not justified. Global examples show that most federal governments, for reasons of security and administrative ease, retain a substantial degree of control over capital territories, even if there is variation in the scope of powers. In India, too, given the presence of Parliament, diplomatic missions, all central ministries, and the impact of events in one part of the capital on its overall functioning, the Centre, through lieutenant governor, needs to retain a degree of control. Indeed, the District of Columbia’s residents (Washington DC) have no representation in the Senate.
But there is little sense in diluting the existing (and limited) powers of the state government, and taking Delhi back to a framework of centralised control, which is what the amendment may do. Delhi’s experiment with having an elected government has been positive—from the time of Madan Lal Khurana through Sahib Singh Verma to Sheila Dikshit and Arvind Kejriwal—for it has forced a more responsive administration. The 2018 Supreme Court judgment limits the role of lieutenant governor. The Centre must not let political considerations and its uneasy relationship with the Delhi government dictate a change that will set the clock back for Delhi.
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