India News | SC to Examine Validity of Amended GNCTD Act, Seeks Centre's Response on Delhi Govt's Plea

New Delhi, Mar 3 (PTI) The Supreme Court Thursday decided to examine the Constitutional validity of the amended GNCTD Act, 2021 and the Transaction of Business Rules, which allegedly give more powers to Lieutenant Governor, and sought the Centre's response on the Delhi government's plea.

The Delhi government, in its plea through Deputy Chief Minister Manish Sisodia, has sought quashing of the four amended sections of the Government of National Capital Territory of Delhi (GNCTD) Act and 13 Rules of the Transaction of Business of the GNCTD Rules, 1993 on various grounds such as they violate the doctrine of basic structure, separation of power as the LG has been bestowed with more authority.

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A bench comprising Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli asked the counsel for the Centre to file the reply within four weeks.

The bench also said that a three-judge bench will hear on April 6 the another plea on the contentious issue of who should control administrative services in Delhi, the dispute which arose from a 2019 split verdict.

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On February 14, 2019, a two judge-bench of Justices A K Sikri and Ashok Bhushan, both retired now, recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital in view of its split verdict.

Justice Bhushan had ruled that the Delhi government has no power at all over administrative services.

Justice Sikri, however, made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the central government and the Lieutenant Governor's view would prevail in case of a difference of opinion for matters relating to other bureaucrats.

At the outset, senior advocate A M Singhvi, appearing for the AAP government, said that governance for the elected government has been difficult as it does not have the power on transfer of officers.

Additional Solicitor General Sanjay Jain, appearing for the Centre, said the issue pertaining to some aspects of Article 239AA (special provision with respect to Delhi) needed re-consideration by a Constitution bench.

The court said it would set up a three-judge bench for hearing the case on April 6.

The fresh plea filed through the deputy chief minister of Delhi, on which the notice was issued, has said the amended GNCTD Act and the Transaction of Business Rules have “disenfranchised” Delhiites, and violated the principle of federalism by diminishing the constitutionally guaranteed powers and functions of the elected legislative assembly and the council of ministers and sought their quashing.

In the 2018 judgement, a five-judge Constitution bench had unanimously held that the Lieutenant Governor of Delhi is bound by the “aid and advice” of the elected government and both needed to work harmoniously with each other.

The petition, which has made the Ministry of Home Affairs and the Law Ministry as parties, said, “The Amendment Act has in effect disenfranchised the people of Delhi, and violated their political rights under the Constitution. For these reasons, it is respectfully submitted that the impugned Provisions contravene both Article 239AA of the Constitution, and the judgment of this Court in Govt of NCT of Delhi versus Union of India”.

Referring the changes made in the law and Rules, the plea said they “impermissibly encroach on the scope of the Delhi Legislative Assembly's core legislative functions” by interfering with the power of the Assembly to frame its own rules of business or to hold the executive to account, a core function of any legislature.

The apex court's judgement had clarified that the provisions of Article 239AA - including those concerning the powers and functions of the LG - must be interpreted in light of the constitutional commitment to federalism, and to representative democracy, the plea said.

“This court interpreted Article 239AA so as to place limitations upon the power of the LG, in order to ensure that the default situation would remain that of a parliamentary democracy with an elected legislature and a responsible executive, while a certain space was retained for exceptional circumstances, where the LG would be required to play a limited role,” it said.

The amended provisions impermissibly reverse this delicate constitutional balance, as set out and interpreted by court in the 2018 judgement, it said.

The amendment of the provisions is an attempt to treat the LG as the default administering authority over Delhi, by equating the position of the LG with that of the “government”, it said.

The new provisions authorise ''the LG to withhold consent from Bills that, in his judgment, may be ‘incidentally' outside the scope of legislative assembly's legislative powers (even though such a bill, if passed into law, would be constitutionally valid under the doctrine of pith and substance), and by empowering the LG to interfere in the day-to-day administration of the NCT by introducing the requirement of obtaining the LG's views before executing a decision of the Council of Ministers under any bunch of laws that are to be specified by LG, through general orders,'' it said.

The amended Transaction of Business Rules dilute and divest the executive powers of the elected government of NCT of Delhi by transferring these powers to the LG and the Secretaries in the Government of NCT of Delhi in derogation of representative form of Government as envisaged under Article 239- AA of the Constitution, it said.

The GNCTD Amendment Act, 2021 has come into force after being passed by the Lok Sabha and Rajya Sabha on March 22 and March 24, respectively.

“The Amendment Bill provides that the term ‘government' referred to in any law made by the Legislative Assembly shall mean LG. This is done by introducing a new clause (3) to Section 21 of the GNCTD Act, 1991,” the plea said.

(The above story is verified and authored by Press Trust of India (PTI) staff. PTI, India’s premier news agency, employs more than 400 journalists and 500 stringers to cover almost every district and small town in India.. The views appearing in the above post do not reflect the opinions of LatestLY)