The Supreme Court will decide whether the provisions introduced by The Government of National Capital Territory (Amendment) Act, 2021 violate the principles of federalism, separation of powers, representative democracy, and the rule of law.
The official designation of the Union Territory (UT) of Delhi is the National Capital Territory (NCT) of Delhi. The Delhi Government is currently formed with the Aam Aadmi Party in the majority.
Under Article 239 of the Constitution of India, the administration of UT’s is handled by an administrator appointed by the President. However, in 1991 the Constitution (Sixty-ninth Amendment) Act, 1991 introduced Article 239AA which created an elected Legislative Assembly and a Council of Ministers including a Chief Minister for NCT Delhi. This Assembly has the power to make laws for NCT Delhi with respect to any of the matters under the State or Concurrent Lists (except public order, police and land matters). The ‘Lieutenant Governor’ (the LG) of Delhi was designated the Administrator of the NCT Delhi.
The relationship between Articles 239 and 239AA is the source of the current political contest between the Union and NCT Delhi government over the administrative control over the NCT Delhi territory. The SC has previously ruled upon the scope of the LG's powers in 2018. A five-judge Bench held that the LG is bound by the aid and advice of the Council of Ministers for all matters where the Legislative Assembly has the power to make laws. They also ruled that the LG only needs to be consulted on decisions taken by the Council, but his concurrence isn’t required.
The Union Government sought to overcome the Supreme Court’s decision by enacting the Government of National Capital Territory (Amendment) Act, 2021 (the Amendment) which came into force on April 27th, 2021. It barred the Legislative Assembly from considering matters on the day-to-day administration of the NCT Delhi and from conducting any inquiries into administrative decisions. It requires any bills passed by the Legislative Assembly to be reserved by the LG for consideration by the President if the bill ‘incidentally’ covers any matters outside the Assembly’s purview. Further, it mandates that all executive action taken by the government must first receive the LG’s ‘opinion’. The Delhi Government filed a petition in the Supreme Court (SC) challenging the constitutional validity of the Amendment on August 10th 2021.
In their petition, the Delhi Government argues that the Amendment diminishes the powers and functions of the elected Legislative Assembly and establishes the LG as the default administrative authority over NCT Delhi on all matters.
They urge the court to declare this constitutional amendment to damage or destroy the basic features of federalism, separation of powers, rule of law and representative democracy and hence unconstitutional.
1. Does the Government of National Capital Territory (Amendment) Act, 2021 violate the basic structure of the Constitution?