SC issues notice to AAP government on challenge of giving wide powers to Lt Governor

New Delhi: The Supreme Court on Thursday sought the Centre’s response on a petition filed by the Aam Aadmi Party government challenging the sweeping amendments made by the Center last year, which had made the “government” in the national capital the Lieutenant Governor. Consent was mandated for all important decisions to be taken by the Delhi government.

Issuing notice on a petition by the Delhi government challenging the Government of National Capital Territory of Delhi (Amendment) Act, 2021, a bench headed by Chief Justice of India (CJI) NV Ramana directed the Center to file its reply in four weeks. Gave. The Court also agreed to list a pending petition filed by the Delhi government to decide whether the Center or Delhi has the power to appoint and transfer officers to the Delhi government. The two-judge bench of the top court had given a split verdict on the issue in February 2019 and now it needs to be considered by a three-judge bench.

Besides the CJI, a bench of Justices AS Bopanna and Hema Kohli posted the matter for April 6 before a three-judge bench, indicating that both the petitions would be taken up together.

Presenting the twin petitions for consideration of the court, senior advocate Abhishek Manu Singhvi said, “There is something strange with this new Act which is under challenge. The National Capital Region has a democratically elected government. But if I want to appoint a secretary, the approval of the lieutenant governor (L-G) is needed. This Court in a 2018 Constitution Bench judgment held that the Delhi government has jurisdiction to decide on all issues, except land, law and order and police. If I cannot appoint or transfer officers, the governance is void.”

The Government of the National Capital Territory of Delhi (Amendment) Act, 2021 and the Government of National Capital Territory of Delhi (GNCTD) Rules, 1993 amend the Transactions of Business with effect from March 28, 2021, thereby amending the important provisions of the Act.

As per the new law, the word ‘Government’ referred to in any law passed by the Delhi Assembly was amended to mean “Lieutenant Governor” (by adding a new clause (3) in section 21 of the GNCTD Act) and in the opinion of the LG. It has been made mandatory under any law to carry out any decision of the Minister or the Council of Ministers on certain matters (by adding a provision in section 44(2) of the Act). Since several other amendments to the rules were also introduced.

The AAP government claimed that the amendment to Section 44 gave backdoor executive power to the LG. Article 239AA of the Constitution recognizes Delhi as the National Capital Territory, with the LG and an Assembly allowed to make laws on all matters other than three excluded subjects – land, law and order and police, where the Center alone makes laws. could.

The petition states that the overriding powers given to the LG are unconstitutional as it has “disenfranchised” the people of Delhi by snatching power from their elected representatives, which strikes at the root of representative democracy and the power of the Delhi Assembly to make laws. violates power.

On the challenge to the amendment in the 1993 Rules, the petition filed through advocate Shadan Farasat stated, “Introducing a deeming provision in Rule 49 of the 1993 Rules, it is now necessary to refer any and every matter to the Central Government by the LG. allows. It further said that the effect of these amendments vested direct executive authority in the Secretaries of the Delhi Government, allowing them to perform and even without reference to the orders of the Ministers concerned or the Council of Ministers. This, according to the AAP government, is an unwarranted encroachment on the “main legislative functions” of the Delhi Assembly.

“The provisions amended by the Amendment Act have effectively deprived the people of Delhi, and violated their political rights under the Constitution, much as the Amendment Act takes away power from their elected representatives and gives to an un-elected official, Being LG,” the petition said.

Additional Solicitor General (ASG) Sanjay Jain appeared for the Center and accepted the notice on behalf of the Centre. He told the court that with regard to the pending issue of jurisdiction over transfer and appointment of officers in Delhi, the matter should be considered by a five-judge constitution bench and not go to a three-judge bench.

“The Center would like to clarify on why there is a need to refer the matter to a Constitution Bench. He referred to the Supreme Court’s 2018 judgment in Delhi Government vs Union of India, which interpreted Article 239AA.

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