Federalism is a structure of government wherein the power is divided between the national government and other governmental units. It can be understood as the relationship and division of powers between a central authority, and its smaller, constituent parts. According to Wheare, federalism is a method of dividing powers so that the general and regional governments are each within a sphere, limited and independent of the other.
The concept of ‘co-operative federalism’ developed in the early 20th century, and denotes decentralisation of power in a federal structure of a nation in such a manner to promote unison. The States and National governments are regarded as mutually complementary parts of a single governmental mechanism. This understanding minimises friction and promotes cooperation among different governmental units to achieve national goals. In a nation that follows the concept of cooperative federalism, the national and state governments coordinate and tackle issues in a cooperative manner, and work interdependently with one another.
Although the term ‘federal’ is not used in the Constitution of India, by laying down principles of separation of powers; separate governments; bicameral legislature; and clear provisions demarcating the legislative, administrative and financial relations between the Union and the States—the structure of governance laid down in the Constitution is regarded as quasi-federal in nature.
It is in the backdrop of this concept of cooperative federalism that we must look at the Government of National Capital Territory of Delhi (Amendment) Act, 2021 passed by the Parliament in March 2021. However, to understand the full extent and meaning of the changes proposed by this Amendment, it is necessary to first understand the unique position of Delhi—as a Union Territory and the country’s Capital.
History of Delhi: Delhi was a Union Territory up till 1991. However, Delhi enjoys the special status of being the Capital of the country, as it is the seat of power for the Parliament of our country, the Supreme Court, diplomatic enclave, and other institutions of national importance. Due to these reasons, Delhi required special security and administration. In 1991, the Government of National Capital Territory of Delhi Act, 1991 was passed— which elevated Delhi from a Union Territory and gave it special constitutional status, as specified under Article 239AA. This article specified that Delhi was allowed to have an elected Legislative Assembly, a Council of Ministers, and a Chief Minister from that Assembly—quite similar to how a State government functions.
However, since Delhi was a Union Territory, along with having a Legislative Assembly, it had a Lieutenant Governor (LG), as opposed to the Governor present in a full-fledged State. As per the Act of 1991, the Chief Minister was merely obligated to inform the Lieutenant Governor of the decisions taken by the Council of Ministers regarding the administration of affairs.
It should be noted that even in the past, the elected Delhi government did not have power over matters concerning land; police; and public law and order— these matters fall under the control of the Lieutenant Governor—and in effect, under the Centre through him.
All other matters under the State and Concurrent Lists came under the control of the Delhi Government, and much like the position of the President or Governor at the Centre and State level respectively, the LG had to work by the aid and advice of the council of ministers, and in case of any disputes, the matter would be referred to the President.
However, after Arvind Kejriwal became the Chief Minister of Delhi for the second term in 2015, a lot of conflicts was seen between the CM and then LG Najeeb Jung, which continued with his successor Anil Baijal. Following these developments, in the case of State NCT of Delhi v. Union of India and Another, [AIR (2018) 8 SCC 501], the Supreme Court in its judgement delivered by a five-judge bench, headed by then Chief Justice Dipak Mishra, clearly stated that “requiring prior concurrence of the Lieutenant Governor would negate the ideals of representative governance and democracy conceived for NCT of Delhi by Article 239-AA of the Constitution. Any view to the contrary would not be in consonance with the intention of Parliament to treat Delhi Government as a representative form of Government.” This case further clarified that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers [excluding situations wherein the LG has the power to use his discretion, under clause (4) of Article 239AA)]. This judgement greatly clarified the power relations between the Chief Minister and Lieutenant Governor and allowed for policy decisions to flow without much hindrance.
Government of National Capital Territory of Delhi (Amendment) Act, 2021
The newly amended Government of National Capital Territory of Delhi Act, 2021 (GNCTD) must be understood in light of the above-stated developments. This act seeks to increase the powers of the Lieutenant Governor of Delhi, and drastically reduces the powers of the elected government of Delhi.
The main amendments proposed through this Act are:
- In any law relating to Delhi, the expression ‘Government’ shall be understood to signify the ‘Lieutenant Governor’—and not the elected representative government. [Section 2 (3)].
It should be noted that the LG is a central appointee– he is nominated to this position by the Central government, and not elected by the people as their representative.
- Section 4 of the Bill bars the Legislative Assembly and any of its Committees from making any rules to consider matters related to daily administration of the Capital; and neither can the Assembly or its Committees conduct inquiries related to the administrative decisions. It also states that any previous rule in contravention to this shall be considered void.
This raises an obvious question—If the Legislative Assembly and its Committees are restricted from conducting inquires and looking into oversights or administrative errors, then how can the elected representative government be considered as answerable and accountable to its people? This provision prevents the elected government from making any decision related to the day-to-day functioning of the bureaucracy.
- Furthermore, According to Section 5 of the Act, the elected government will have to take LG’s opinion on all such matters specified by him, before taking any executive action on the matters concerning the Delhi government.
Here, although the amendment does not specifically mention that LG’s agreement on all matters is necessary for the government to proceed and implement any decisions, but this provision could cause undue delay and may stall the government’s initiatives due to conflicts between the elected government and the administrator. It should be noted that the amendment does not specify the time- period within which the Lieutenant Governor must give his opinion.
This provision drastically increases the discretionary powers given to the Lieutenant Governor, who, it should be reiterated, is not accountable to the public for his actions. This greatly reduces the say the Delhi government would have in its administration and is in conflict with the Supreme Court judgement in 2018.
Constitutionality of the GNCTD Act, 2021
Some important questions have been raised regarding the constitutionality of the bill and on the rationale and justification provided by the government in passing the same.
In simple words, this Act proposes to change the meaning of government in Delhi to an appointed individual—and not the elected representative of the people. It seeks to change the position of the elected government, and make it subservient to the Lieutenant Governor of Delhi, who was earlier the titular head. Furthermore, the elected government will now be required to seek the approval of the Lieutenant Governor before taking any executive action. This is in clear conflict with the principles of representative government in a democracy, as it curbs the powers of the elected government, and empowers the LG, who is an unelected head.
The structure of governance in India, as envisaged by the constitution framers, was that of a quasi-federal government. While we have a strong centre, with unitary provisions, there are also federal principles to keep the union government from acting in a unitary manner, and clear demarcations of functions of the Centre and State. The Supreme Court in its judgement in 2018 also stated “As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government concerning matters which exclusively fall within their domain.”
The Centre has argued that this amendment was necessary to clarify the ambiguities in Article 239AA. Being mindful of the complex nature of Delhi due to the unique position it enjoys, this amendment was considered necessary to achieve structural clarity in governance, and for proper implementation of the Supreme Court’s judgement in 2018. The Union Minister of State for Home G Kishan Reddy stated, “It [the Amendment Bill] is being brought to end ambiguity in certain issues as Delhi is a Union Territory. It will end certain confusion of technicality and enhance the efficiency of the administration.” The Central government has justified that this amendment was necessary to increase administrative efficiency and to remove technical ambiguities in the functioning of the Delhi government.
However, a question must be raised here— does this amendment result in the removal of technical ambiguities, or does it end up removing the democratic right of the people of Delhi to have a representative and accountable government?
Although it is common to witness clashes over power-sharing and power dynamics between different political parties, this is where the spirit of federalism, which is a part of the basic structure of the constitution, must come to play—the public representatives must put the people first. The Government of National Capital Territory of Delhi Act, 2021 by elevating the position of Lieutenant Governor and changing the meaning of ‘government’ in Delhi to mean an appointed individual and not the elected representatives, essentially restricts the democratic right of the people of Delhi to have an accountable and answerable government.
Furthermore, it should also be noted out that an amendment that brings in such drastic changes to the functioning and structure of the nation’s capital warranted an in-depth and thorough deliberative process, instead of being passed in such haste.
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