Guest post: Does GNCTD (Amendment) Act 2021 stand the test of our constitutional ethos?

[This is a guest post by Preetkiran Kaur who is student of RGNUL, Patiala and an editor at Constitutional Renaissance Blog.]

Introduction

The Constitution of India begins with a declaration that India is a sovereign democratic republic. This idea of vesting real sovereignty in the people of the country was adopted by the Constitution makers during the days of framing the Constitution.

The rule by the people, of the people and for the people along with a Federal Structure was propounded to establish an egalitarian social order. However, a rigid federal model could not be adopted owing to the unique challenges being faced such as building communal tensions, poor state of agriculture and farmers along with low levels of economic development at the time of independence. It was concurred that a cooperative federal model (which has been discussed on this blog, here) shall be implemented where States and Union Territories shall be given certain autonomy in terms of legislative, executive and judicial powers. Geoffrey Sawer defined cooperative federalism as:

A system of governance where ‘each of the parties to the arrangement has a reasonable degree of autonomy, can bargain about the terms of the cooperation, and at least if driven too hard, decline to cooperate.’

Thus, as KC Wheare coined, ‘a quasi-federal model’ was opted for all the states of the nation which would rely on ideas of co-operation, negotiation, statesmanship and constitutional morality. However, the unique position of Delhi as the national capital became a peculiar case of contention. Hence, The Government of National Capital Territory of Delhi Act, 1991 (hereinafter referred to as ‘The Parent Act’) gave it the status of a union territory with a Legislative Assembly and Council of Ministers to aid and advise the Lieutenant Governor. It is neither completely vested with powers of a state but has more rights than a Union Territory.

Thus, Dr BR Ambedkar stated on the floor of the Constituent assembly that the Constitution is “both unitary as well as federal   according   to   the   requirement   of   time   and circumstances.”

Over the years, the interpretation of the NCT Act, 1991 has often been examined by the Courts and the landmark judgment of GNCTD v. UOI is an important one in this regard, which is summarised and discussed on this blog, here. The case settled the conflicting questions of law. However, the present Central government in the year 2021 passed the GNCTD (Amendment) Act 2021 (hereinafter referred to as ‘The Act’) which usurped the powers of the Legislative Assembly and the executive of Delhi. The author thus attempts to identify certain constitutional challenges against The Amendment Act, 2021 which undermines the principles of federalism and democracy.

Scrutinising the GNCTD (Amendment) Act 2021

Section 2 of The Act amends Section 21 of The Principal Act and states that “the expression “Government” referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.” This provision is in direct contradiction with the democratic ideas of representative governance followed in India. The Parliamentary system practiced in India relies on elected representatives chosen on the basis of adult suffrage. Thus, members of the Legislative assembly of Delhi elected under Article 239AA represent the popular will of the People. Sixty-Ninth Amendment was specifically brought to establish the Westminster Model in Delhi and have a democratic set up. The use of the word ‘shall’ in Article 239AA clause (2) signifies that establishing a Legislative Assembly using adult suffrage shall be a mandatory provision. The real power vests with the elected representatives or the Council of Ministers which in turn have a collective responsibility towards the State legislature to ensure accountability. J. Chandrachud in GNCTD v. UOI opines that, “Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature.” 

Thus, the democratic idea of representative government is robbed in a case where Lieutenant Governor would be synonymous to the government. The Lieutenant Governor is appointed by the Central government and not directly by the people. The Central government represents a very small section of the population which cannot be vested with the power to replace elected representatives with nominated heads. The Lieutenant Governor has no collective or individual responsibility to the public whereas democracy ensures direct nexus of the two. 

Second, Section 3 of The Act amends Section 24 of The Principal Act and states that any matter which does not fall under the Legislative Assembly shall fall within the powers of the Lieutenant Governor. Article 239AA (3)(a) states that the Legislative Assembly shall have the power to legislate on matters in the State Lists except on issues of police, public order and land. These subjects fall under the purview of the Central government. Vesting the power to legislate upon these subjects on a nominated head instead of an elected representative undermines the principles of electoral democracy in India. It was iterated in GNCTD v. UOI that bestowing the Center the powers which have been constitutionally provided to the states is an act against the basic tenets of democracy.

 In addition to that, Section 4 of The Act amends Section 33 of The Principal Act and states that rules of procedure for conduct of its business shall be pari materia to the Rules of House of People. In addition to that, it truncates the Legislative Assembly to frame any rules pertaining to its day to day administration and is powerless in terms of conducting enquiries. Article 239AA (3)(a) also explicitly provides the power to the Assembly to conduct its business and frame rules accordingly. 

Lastly, Section 5 of The Act amends Section 44 of The Principal Act and states that any executive action can be taken by the Legislative Assembly only after consulting the Lieutenant Governor. The term ‘aid and advise’ has been employed in the Article 239AA implies that the Council of Ministers shall aid him in performance of his duties. In addition to that, the difference of opinion between the Lieutenant Governor and Council of Ministers shall be settled by the Lieutenant Governor only in cases where it is urgent for him to take immediate action. In the judgment of GNCTD v.UOI, the Constitutional Bench held that the phrase ’on any matter’ does not imply ‘every matter’. The primary law making power vests in the assembly and role of the Lieutenant Governor is merely that of an Administrator. 

These provisions which are in stark contradiction to the text of supreme lex, i.e. Constitution of India, and they violate the Doctrine of Pith and Substance. The Rule states that the Parliament or State Legislature shall exercise its functions as permitted by the Constitution and cannot encroach upon powers of the other. Here, the Parliament by passing the Amendment Act trespasses its domain and infringes upon the powers of the Legislative Assembly mandated by the Constitution. The Supreme Court in the case of Bharat Hydro Power Corporation Limited v. State of Assam laid down a three tier test to determine the application of the doctrine. For applying the principle of “pith and substance” regard is to be had: 1. The enactment as a whole; 2. To its main objects; and, 3. To the scope and effect of its provisions.

Looking at the Amendment Act as an organic whole and examining its statement of Objects and Reasons, the intent lies to limit the powers of the Legislative Assembly by entrusting legislative powers to the Lieutenant Governor. The effect of the provisions as discussed undermine the principle of representative government and collective responsibility which form the bedrock of democracy. 

This rule of ‘pith and substance’ stems from the idea of federalism which in the case of SR Bommai v. Union of India was classified as the basic structure of our Constitution. Encyclopedia Britannica defines federalism as:

“Federalism,   mode   of   political   organization   that unites separate states or other policies within an overarching political system in such a way as to allow each to maintain its own fundamental political integrity.” 

It was held in the celebrated judgment of Kesavananda Bharati v. State of Kerala that the basic structure of the Constitution cannot be amended or abrogated. The same view was reiterated in   Indira Nehru Gandhi v. Raj Narain, T.N.   Seshan,   CEC   of India v. Union of India and others and Kuldip Nayar v. Union   of   India   others.

Thus, by disturbing the distribution of powers between Center and state, it becomes an imminent threat on the co-operative federalism model followed in India. The federal balance calls for division of powers between Center and states with a comparatively strong center. However, the Rule of Law does not permit arbitrary interference in the powers of the State without a legitimate cause. Center has a constitutional duty to uphold constitutional morality and cannot act based on its whims and fancies. The Apex Court in the case of In  re:   Under   Article   143, Constitution  of  India,  (Special  Reference  No.  1  of  1964) held that “the essential characteristic of federalism is the distribution   of   limited   executive,   legislative   and judicial   authority   among   bodies   which   are coordinate with and independent of each other.”

Conclusion

To sum up, the author would like to conclude that the controversial Amendment Act passed by the Parliament violates not only the spirit of the Constitution but also the basic structure. The provisions of the Constitution entail a sovereign and democratic spirit where Rule of Law shall prevail. However, as discussed in the article, the legislative intent and the legislation as a whole do not pass the test of democratic federal set up of a nation. The present legislation although received the assent of the President but should be quashed by the Apex Court to fulfil its role of a ‘Guardian’ of the Constitution.

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