The Government of NCT of Delhi (Amendment) Act, the 4 amendments, what they mean and why the outrage by media is misplaced

The following article was written for OpIndia. Pasting it here for reference:

The sound and fury of the English media when it comes to matters pertaining to Arvind Kejriwal started to get boring. So, I wasn’t paying much attention to the murder of democracy articles/tweets related to the Amendments to the NCT Act. Until I heard the Minister of State for Home Affairs, G. Kishan Reddy speak in the Rajya Sabha. First and foremost, the amendments are being made to “THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991”.

This was drafted and passed by the Parliament when Congress was in power at the centre. This 1991 Act already gives some discretionary powers to the Lieutenant Governor (LG) of the state. 

Every now and then, debates have opened up about giving full statehood to Delhi; about how the powers of LG are more than the elected Chief Minister of Delhi; about how the post of LG is more political etc. The 1991 Act in fact defines what the “duties” of the Chief Minister are, with respect to his communication to the LG (Note how the Act requires the CM to communicate even the proposals for legislation). 

This noise became louder after Arvind Kejriwal came to power. During his previous term, I had even wondered if he is actually intentionally designing bills to set them up for rejection and then cry victim. He had then deliberately flouted existing rules and then went to town crying victim and he was dutifully helped by a very compliant English media that sought to pin the blame on Modi for a law bought by the Congress party.

Thereafter, the courts have been approached which have indeed upheld the interpretations made in the Constitution. The Modi government has bought in certain amendments to clarify the confusion revolving around certain aspects of this. 

The first amendment proposed in the 2021 Amendment Act is pretty simple – ‘(3) The expression “Government” referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.’

The furore around this totally beats me. All Government Orders (GOs) of all state governments go out in the name of the Governor. All orders of the central government go out in the name of the President. Does it in any way take away the powers of the elected state governments and central governments? Shri Kishan Reddy had also referred to “The General Clauses Act” in which the definition is quite clear too – for a Part C state, government means “the Chief Commissioner or the Lieutenant Governor”

Since many people are going to both High Court and the Supreme Court on multiple occasions seeking this clarification, this amendment was necessitated to make it clear what the legal definition of “government” is. For fun, I went to the Gazette pages of the Delhi government and was clicking randomly. There are many GOs issued by the Arvind Kejriwal led Government of Delhi “in the name of Lt Governor of the NCT”.

In fact, this amendment brings uniformity in how all states are currently operating too. Is it the argument of the opponents of this bill that Delhi deserves special treatment? Especially when not a single power of the Delhi government is being snatched away because of this legal clarification. 

The second amendment proposed in the 2021 Amendment Act is again pretty straight forward. Section (24) of the original 1991 act already defines those categories of bills that are passed by the Legislative Assembly but can be referred to the President of India by the LG for further consideration. 

The amendment simply seeks to add another category to this – “(d) incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly.”

Basically, this says that if the Legislative Assembly passes a bill on matters that don’t fall under its purview, the LG has the right to either give assent to the bill or send it to the President of India for consideration. That’s it – the LG sends it to the President for a final decision. That’s the amendment. Now, what exactly is the problem with this amendment? Is it their argument that the Delhi Assembly can pass any bill that it likes, and the LG has to simply accept it? Why would those who constantly argue day in and day out about their love for the constitution make so much noise about a simple amendment that brings in a well-defined structure to the law? 

The third amendment of the 2021 Amendment Act gives clarity to the rules of the “conduct of business” of the Legislative Assembly. To keep matters simple, the amendment states that these rules “shall not be inconsistent with the Rules of Procedure and Conduct of Business in House of People“. Simply put, what holds good for the Lok Sabha should hold good for the Delhi Legislative Assembly too. Instead of making fun of the amendment, it is time for us to think about why such an amendment was even necessitated in the first place. 

It was necessitated because Arvind Kejriwal and his AAP were going about interfering in the day to day functioning of the Delhi Police through committees constituted by the Delhi Assembly (note that AAP has a “brute majority” in the Assembly). The lovers of the Constitution and the rule of law have failed to tell you that the constitution clearly states that the Delhi Police and Law and Order in Delhi come under the purview of the Central government. Neither the state government nor the legislative Assembly has any powers to interfere in the day to day functioning of the Delhi police (for example, cannot investigate riots). 

These are all powers well defined in the Constitution of India and the 1991 Act that defines the National Capital Territory of Delhi as a Union Territory with a Legislative Assembly with limited powers (similar to Puducherry and J&K). Arvind Kejriwal cannot overstep his legal mandate. He cannot simply use his massive victories to function outside the ambit that the Constitution of India has defined (multiple court judgments have also upheld these provisions – Kishan Reddy elucidates them well in his 20-minute reply in Rajya Sabha). 

Even today, parliamentary committees don’t involve themselves in the day-to-day functioning of their respective departments. They don’t conduct investigations into the administrative decisions of their departments. This amendment simply seeks to make the rules of Delhi Assembly consistent with that of the Lok Sabha (and also all other state assemblies in the country). One must analyse why the alleged liberals want the Delhi Assembly to have special unlimited powers that no other UT or State in India has. 

The fourth amendment (though verbose) of the 2021 Amendment Act simply states that the opinion of the LG is to be taken before any executive action is taken on certain subjects. That’s it – the opinion has to be taken by the government. It is not mandatory to invoke that opinion. When it is not mandatory to invoke that opinion, how exactly is this a death knell to democracy? 

The Government of India is very clear that these amendments only bring legal clarity to the functioning of the Delhi government and does not take away a single power of the elected Chief Minister. The proof that this argument holds good is evident in the vacuous editorials that have been dished out in this matter – not a single one of them have stated the obvious! 

Arvind Kejriwal’s sound and fury mean nothing. His constant victimhood drama has found many takers in the English media. More often than not, the noise he makes is very disproportionate to the gravity of the issues. The latest storm in a teacup proves this, yet again.