What is the Constitutionality of the Government of National Capital Territory of Delhi (Amendment) Act, 2021?

Analysing the constitutionality of the recently passed Government of National Capital Territory of Delhi (Amendment) Act, 2021, lawyer VINEET BHALLA explains why the legislation is liable to be struck down upon judicial review.

Alot has been said and written about the Government of National Capital Territory of Delhi (Amendment) Act, 2021, which was passed last month by both Houses of the Parliament within nine days of being introduced. It has been widely criticised for its putative anti-democratic nature, and for using the legislative route to settle political scores.

However, in the spirit of instilling a constitutionalist perspective into our national political discourse, the focus of my analysis shall be on the constitutionality of the Amendment Act, since that is the basis on which its validity is liable to be challenged before the Supreme Court of India.

Effect of the Amendment Act

The Amendment Act provides that the term ‘government’ in any legislation passed by the Delhi Legislative Assembly shall refer to the Lieutenant Governor (LG) of Delhi. It states that on all such matters, as specified by the LG through an order, her opinion must be obtained before any executive action, pursuant to the decision of a Minister or Council of Ministers of Delhi, is taken.

Further, the Amendment Act prohibits the Delhi Legislative Assembly from, either by itself or through any of its Committees, to either consider the matters of the day-to-day administration of the National Capital Territory of Delhi, or conduct any inquiry in relation to administrative decisions. It deems any rules previously made by the Assembly pertaining to such matters void.

The Amendment Act also regulates the power of the Delhi Legislative Assembly to make rules for its procedure and conduct of its business, by mandating that these rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.

Also read: Why Delhi Citizens Will Be the Real ‘Losers’ if NCT Bill Is Passed

Illegitimately overrules the Supreme Court’s 2018 judgment

In 2018, a five-judge Constitutional bench of the Supreme Court of India had delivered a landmark judgment to clarify the scope of powers of the Delhi Government in relation to the LG.

In this judgment, the apex court had construed the rationale behind the grant of special status to the National Capital Territory of Delhi in the constitutional scheme thus:

“The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinions in-laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the constitution. For paving the way to realise this real purpose, it is necessary that we give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of our Constitution are reinforced in NCT of Delhi in their truest sense.”

As per this purposive interpretation, the bench had unanimously held that the LG of Delhi has no independent decision-making powers and is bound to follow the “aid and advice” of the Delhi Chief Minister and her Council of Ministers in the Government of Delhi on all matters except those pertaining to police, public order and land.

Also read: Collaborative federalism, constitutional morality, special status: Supreme Court’s Delhi judgment explained

The Parliament has, though, for all intents and purposes, reversed the Court’s ruling through the Amendment Act by strengthening the role of the LG, who is a Union Government appointee, in the governance and administration of Delhi, and rendering both the Government and Legislative Assembly of Delhi impotent.

Can the Parliament pass a law that overturns a Supreme Court decision? This question was dealt by a division bench of the Supreme Court in its People’s Union for Civil Liberties v. Union of India (AIR 2003 SC 2363) (PUCL) judgment, and answered thus:

“It is a settled principle of constitutional jurisprudence that the only way to render a judicial decision ineffective is to enact a valid law by way of amendment or otherwise fundamentally altering the basis of the judgment either prospectively or retrospectively. The legislature cannot overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the legislature cannot trench on the judicial power vested in the Courts.”

The Amendment Act ostensibly seeks to give effect to the 2018 judgment (as per the Statement of Objects and Reasons of the Bill that eventually became the Act). However, it actually nullifies the 2018 ruling without altering its basis.

The 2018 judgment had relied on the principles of democracy and federalism to decide the case and held the supremacy of the elected government of Delhi over its LG in the administration of the National Capital Territory. The Amendment Act does not even deal with either of these principles. Therefore, by cancelling out a Supreme Court decision without attempting to alter its basis, the Amendment Act is trenching on the judicial power of courts, and is clearly invalid, as per the PUCL judgment.

Violative of Article 239AA of the Constitution

Delhi was conferred with its present governance structure by Article 239AA of the Constitution, which was inserted in 1991. The Parliament then enacted the Government of National Capital Territory of Delhi Act, 1991 to give effect to the provisions of the newly added constitutional provision.

The 1991 Act can be understood to be a legislation supplemental to Article 239AA, and cannot go beyond what is contained in the latter. This is as per the settled principle of law that a legislative proposal cannot be incidental or consequential if the effect of it is against the parent law or constitution. This was articulated by a division bench of the Supreme Court in its judgment in the case of Supreme Court Employees’ Welfare Association v. Union of India (AIR 1990 SC 334).

It is important to note that the Amendment Act amends the 1991 Act, and not Article 239AA. The amended 1991 Act, as will be shown below, violates multiple provisions of Article 239AA.

For one, Art. 239AA(6) states that the Council of Ministers shall be collectively responsible to the Legislative Assembly. This is an enunciation of the principle of executive accountability, as per which every legislature is inherently empowered to scrutinise the decisions taken by the executive branch. This is the very lifeblood of the system of parliamentary system of government.

By taking away its power to look into the administration of the National Capital Territory of Delhi, the Amendment Act essentially prohibits the Delhi Legislative Assembly from inquiring into the implementation of laws promulgated by it for Delhi. This abrogates the principle of executive accountability outlined in Art. 239AA(6).

Executive accountability can also be read into the provision of Art. 239AA(4), which provides for the LG to act only on the aid and advise of the Council of Ministers in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws. Since the Council of Ministers is responsible to the Legislative Assembly, the LG, by extension, is also responsible to it since he must act only on the aid and advice of the Council of Ministers.

The Amendment Act deems the LG, rather than the elected government, to be ‘government’ in all laws passed by the Legislative Assembly. Since the effect of the Amendment Act is to put the LG in the driver’s seat with regard to decision-making and the elected government having to seek his opinion before taking any executive action, as opposed to the LG acting on the aid and advise of the elected government, the LG is consequently not bound by the decisions of the Legislative Assembly, and not responsible to it. This runs afoul of the spirit of Art. 239AA(4).

The Amendment Act also violates Art. 239AA(7)(a), which allows the Parliament to make provisions for giving effect to, or supplementing the provisions contained in the Article and for all matters incidental or consequential thereto. By upending Article 239AA, rather than actually giving effect to it, the Amendment Act runs afoul of both the letter and spirit of Art. 239AA(7)(a).

Finally, it must be noted that as per Art. 239AB, which was also added to the Constitution as part of the 69th Amendment in 1991, President’s Rule can be imposed in Delhi on the receipt of a report from the LG. Since the LG is the ‘government’ in Delhi now, we arrive at the logically untenable position of her having to make a report against herself under Art. 239AB.

It is evident, here too, that Art. 239AB recognises the elected government as the actual government and the LG as only a constitutional head in the scheme of Art. 239AA.

Also read: With LG at Helm, Expect Policy Paralysis in Delhi

Violative of the Constitution

The extract from the 2018 judgment reproduced above refers to the principles of democracy and federalism as part of the basic structure of the Constitution.

The basic structure doctrine was outlines by the Supreme Court in its landmark judgment in the case of Kesavananda Bharati v. Union of India (AIR 1973 SC 1461). In this judgment, a 13-judge Constitution bench of the court had held the Parliament cannot use its powers to militate against the basic elements or fundamental features of the Constitution.

Some of the basic features of the Constitution enumerated in the judgment are:

1. Supremacy of the Constitution
2. Republican and Democratic form of Government
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive & the judiciary
5. Federal Character of the Constitution

As outlined in this analysis, the Amendment Act is in violation of all but the third of these principles. For this, too, its constitutionality is suspect.

Also read: ‘Would Violate Basic Structure of Constitution’: Former Civil Servants Slam Centre’s GNCTD Act

To summarise, the Amendment Act violates the spirit of the Supreme Court’s 2018 judgment in a manner prohibited by the apex court’s PUCL judgment, violates the letter and spirit of Article 239AA of the Constitution, and violates the basic structure of the Constitution. Simply put, it is an unconstitutional Act.

The article was originally published in The Leaflet.

(Vineet Bhalla is a Delhi-based lawyer and part of The Leaflet’s staff. The views expressed are personal.)