The Constitution of India in 1950 classified Delhi as a Chief Commissioner’s Province (renamed ‘Union Territory’ in 1956). It did not provide for a legislative assembly for Delhi or any self-government. The President of India would directly administer Delhi through a Lt. Governor. The Union Parliament was given the power to set up a legislative assembly if it so wished. But until then, all executive power was vested with the Lt. Governor.
For around 30 years, Delhi functioned without a legislative assembly or an elected government. In the late 1980s, there was a strong political movement that demanded self-government institutions. In response, the Balakrishna Committee was set up in 1987 to look into the demand. On the Committee’s recommendation, Parliament passed the Constitution (69th Amendment) Act, 1991 which inserted Article 239AA into the Constitution.
This Amendment established a legislative assembly for Delhi that was empowered to make laws on subject matters in the State and Concurrent Lists except matters relating to public order, police and land. Delhi would now have an elected assembly and an executive comprising of ministers and a Chief Minister.
Over the next two decades, conflicts emerged between the elected sections of the executive and the Lt. Governor. This conflict came into sharp relief during Arvind Kejriwal’s second term as Chief Minister of Delhi during which he regularly sparred with the Lt. Governor. At the heart of these tensions was confusion and ambiguity regarding the roles of the Chief Minister and the Lt. Governor.
In 2018, the Supreme Court of India clarified that the Lt. Governor was an administrator, and the Chief Minister of Delhi was the head of Delhi’s executive. The Court also held that executive power of the Delhi government is co-terminus with the legislative power of the Delhi Legislative Assembly. In other words, the elected Delhi government would have executive power over matters on which the Delhi Legislative Assembly has legislative power. So, the Lt. Governor is bound by the 'aid and advice' of the Council of Ministers on all matters where the Delhi Legislative Assembly has the power to make laws.
On 22 and 24 March 2021, both houses of the Union Parliament passed a bill to amend the National Capital Territory of Delhi Act, 1991 (Bill). Many argue that the Bill drastically curtails the powers of Delhi’s elected government. Members of Parliament were seen holding signs: ‘SC says CM is government, Amit Shah says LG is government’, ‘Stop killing the Constitution, stop killing democracy’. The timing of Bill, coming close in the heels of the Bhartiya Janata Party’s (BJP) failure to secure a single seat in the local body bye-elections, has raised eyebrows.
The Bill claims to give effect to the 2018 Supreme Court judgement and to ‘promote harmonious relations between the legislature and executive, and further define the responsibilities of the elected Government and the Lieutenant Governor’. Three aspects of the Bill stand out: First, the Bill states that ‘Government referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.’ Second, any executive action taken by the Delhi government would require an order of approval from the Lieutenant Governor. And third, the Legislative Assembly is prohibited from making any rules in relation to day-to-day administration of the city or conduct any inquiries on administrative decisions.
These provisions appear to give primacy to the Lt. Governor, an office through which the Union government exerts its influence, in executive matters. This comes in direct conflict with the 2018 Supreme Court judgement.
More concerningly, the provision on rules and enquiries in the Bill has the potential to impact on-going state investigations into matters such as the 2020 Delhi riots in which the roles of Union and Delhi bureaucracy and major political parties are being investigated.