On March 28, Indian President Ram Nath Kovind gave his assent to the Government of National Capital Territory of Delhi (Amendment) Act, 2021 (GNCTD Amendment), once against setting the stage for a power tussle between the Indian central government and the Delhi government. However, caught in between the ongoing farmers’ protests and the COVID-19 crisis, the passage of the law has gone relatively unnoticed, with discourse on the law not going beyond the minimal attention paid to the to-and-fro between opposition leaders and the central government. Nevertheless, the implications of the new law extend far beyond the administrative and political impacts on New Delhi and pose a multi-faceted threat to federalism and constitutional supremacy, which are both crucial pillars of Indian democracy.
Primarily, the GNCTD Amendment Act aims to modify the meaning of “government” in all laws governing the New Delhi region from the democratically elected Delhi government to the central government-appointed Lieutenant Governor (LG). It also aims to diminish the administrative powers of the Delhi government by mandating the LG’s consent for any executive actions. Furthermore, the Act enhances the LG’s role in legislative activities in Delhi by requiring his prior consent on any bill. It additionally dilutes the elected government’s powers by restricting its committees from enacting rules on administrative matters.
Following the law’s enactment, the Chief Minister of New Delhi, Arvind Kejriwal, said that the Act’s passage represented a “sad day for Indian democracy.” Kejriwal opined that it essentially made the democratically elected government in New Delhi “administratively impotent”, a sentiment that was echoed by political leaders from several opposition parties, including the Indian National Congress, the Trinamool Congress, and the Shiv Sena.
Despite a barrage of criticism from leaders of several opposition parties, leaders from the ruling Bhartiya Janata Party (BJP) continue to argue that the Act is necessary to facilitate a smooth-functioning governance model in New Delhi. Adesh Gupta, the Delhi BJP’s President, said that the law, as mentioned in the Act’s objectives, is in furtherance of the Indian Supreme Court’s call for clarity on the separation of administrative powers between the two governments in Delhi. This is a reference to a 2018 judgement by India’s top court, GNCTD v Union of India, in which the court ruled on the power dynamic between the governments in New Delhi. However, while Gupta has rightly highlighted the court’s call for clarity on the nature of administrative powers of the two governments, he ignored the court’s ruling that, unlike a governor of states, the LG does not have extensive capabilities and is merely an administrator. Moreover, the court held that while the LG could dissent to an opinion by the Delhi government, he or she must work on the “aid and advice” of the council of ministers. This ruling was in furtherance of the 69th Constitutional Amendment that established New Delhi’s special status, through which it retained significant powers with the legislature and executive despite being a Union Territory. Hence, the Act is in stark violation of the Supreme Court’s ruling and the Constitutional Amendment on the issue.
In addition, the Act also poses yet another threat to India’s already crumbling federal structure. In fact, the Modi government has for some time now been criticised for its shaky commitment to federalism. For example, several experts believe that the incumbent government’s passage of the Farm Bill and its decision to hold back GST compensations from states until specific reforms are introduced pose a threat to the critical balance of powers between the state and the centre. In this regard, the GNCTD Amendment Bill is another blow to India’s withering federal structure.
Indian Union Minister of State for Home Affairs G. Kishan Reddy, however, has rejected this argument, saying that the Act actually strengthens cooperative federalism in the country, a critical element of which is the clear demarcation of responsibilities. Keeping this in mind, Reddy says that the law is necessary to ensure that the Delhi government does not overreach and extend its powers beyond permissible limits.
However, contrary to the argument made by the Indian minister, the Act undeniably waters down the powers of the democratically elected Delhi government by requiring its legislative assembly to seek the assent of the LG before taking any legislative or administrative actions. This is a clear violation of the model of federalism adopted by the Indian constitution, which demarcates issues into state, centre, and concurrent lists, thereby stipulating the specific issues that states and central legislatures have the power to legislate over. Hence the power of the legislative assembly in the capital city can only be restricted by these provisions. Therefore, by changing the rules and procedure for governance in New Delhi, the Indian lawmakers have acted beyond their capacity and once again encroached into an issue that rests solely within the jurisdiction of the local governments.
Apart from the clear legal challenges faced by the law, there are several social and political implications of the Act too. As the capital of the country, New Delhi is symbolic of sovereign power and has also become the hub for political and social discourse. Over the past two years, the region has housed critical political protests and demonstrations on the Farmers’ Bill and the Citizenship (Amendment) Act. With the central government already enjoying control over the police force and law and order in the region, which has often resulted in troubling crackdowns on protestors, the extensive powers to control the day-to-day administrative functioning of the Delhi government widens these powers to a concerning degree.
This is undeniably going to impact the social and political discourse in New Delhi, which has for years been the driving force behind political dissent and pushing for accountability from the central government. For instance, prior to this amendment, the central government required the assent of the Delhi government to initiate an investigation and prosecute Umar Khalid, a vocal critic of the BJP-led government, under the Unlawful Activities (Prevention) Act (UAPA), which mandated prior consent from the affected state government for prosecuting Khalid for his alleged role in the 2020 riots in New Delhi. However, this Act will now require centrally-appointed LG’s assent. This is particularly concerning, as the vague and broad powers of the UAPA have often been used as a tool to curb dissent and political opposition. Moreover, the Act will also allow the central government to completely take over the inquiry into the 2020 riots, for which the Delhi Government had set up a nine-member independent committee called “the Peace and Harmony Committee”. Hence, beyond the legal impact of the law, keeping in mind the political significance of the New Delhi region in driving discourse across the country, the amended law also has a concerning impact on the social and political rights of civilians.
At the first glance, the law may not appear problematic, as it has been veiled behind the need to enhance transparency and accountability in the governance in New Delhi. However, it is carefully phrased to have far-reaching impacts on the legal and constitutional rights of the authorities in Delhi and the affected citizens by diluting the powers of a democratically elected government and prospectively resulting in crackdowns on social and political rights. It is this methodic dissection of federalism that is perhaps the reason why an issue of such great concern has gone largely unnoticed by civil society groups, legal experts, and activists, who are primarily responsible for shedding light on problematic decisions by the central government in India. Hence, it is critical to spread awareness about the impact of these laws and, in turn, initiate advocacy campaigns to urge the policymakers of the country to reconsider threatening the carefully balanced power dynamic between the two warring governments in New Delhi.
Why We Should Be Concerned About the Changing Power Dynamic in New Delhi
The GNCTD Amendment Bill, which enhances the role of the Lieutenant Governor by diluting the powers of the Delhi Government, will have significant legal, social, and political consequences.
April 22, 2021
Anil Baijal, the Lieutenant Governor of Delhi, with Arvind Kejriwal, the Chief Minister of Delhi. SOURCE: INDIAN EXPRESS