The Government of National Capital Territory of Delhi (Amendment) Act, 2023 received assent from the President of India, and came into effect from May 19, 2023. This follows the promulgation of the Government of National Capital Territory of Delhi (Amendment) Ordinance in May 2023.
The Ordinance amended the Government of National Capital Territory of Delhi Act, 1991 (GNCTD Act), and was introduced in the backdrop of a recent decision of the Constitutional Bench of the Supreme Court in the case of Government of NCT of Delhi vs. Union of India (NCT Decision), where the Apex Court settled the ongoing tussle between the legislature of Delhi and Lieutenant Governor over the control of ‘services’ in Delhi.
Special Status of NCT of Delhi
The constitutional framework with respect to the union territories in India envisages three broad structures – firstly, a union territory with no legislature; or one with a legislature created by a law of parliament; and finally those union territories with a legislature created by the Constitution.
Special provisions were made with respect to the national capital through the introduction of the Article 239AA in the Constitution in 1992 by the Constitution (Sixty-ninth Amendment) Act, 1991. Article 239AA(3)(a) provides that the Legislative Assembly /GNCTD has competence to legislate over entries in List II (State List) and List III (Concurrent List) except for the expressly excluded entries (1,2 and 18) of List II – State List.
However, Article 239AA(3)(b) makes a non-obstante provision by empowering the Parliament to make laws with respect to any matters of all the three lists, and any law enacted by the state legislature of the national capital, if found to be repugnant to a law enacted by the Parliament, then such law of the legislature shall be void.
Hence, in addition to all the Entries in List I (Union List), the Parliament has legislative competence over all matters in List II and List III in relation to the national capital of Delhi (NCTD) including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a).
Therefore, by virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other UTs.n 2018, the Supreme Court in the case of State (NCT of Delhi) v. Union of India, analysed the issue as to whether GNCTD be treated like a UT with the LG as its administrative head or as a ‘Special State’ where the LG is bound by the advice of the chief minister/council of ministers. This arose from a notification dated 21 May 2015 issued by the Union Ministry of Home Affairs, that provided that the LG shall exercise control “to the extent delegated to him from time to time by the President” over “services”, in addition to “public order”, “police”, and “land.” The LG may seek the views of the Chief Minister of NCTD at his “discretion”.
The constitutional bench of 5 judges ruled that GNCTD is not similar to other UTs and Government of NCT of Delhi is a representative form of Government. It was held that the executive power of GNCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. Thus, the legislative and executive power of GNCTD extends to all subjects in Lists II and III, except those explicitly excluded. However, in view of Article 239-AA(3)(b), Parliament has the power to make laws with respect to all subjects in List II and III for NCTD in addition to the List III.
The recent decision of the Apex Court was analysing the question as to “who would have control over the ‘services’ in the national capital, the GNCTD or the LG acting on behalf of the Union Government?”
The Court held that both the Parliament and the GNCTD have legislative competence over List II and List III, and for GNCTD, both these lists are “concurrent lists”. The bench further said that the LG may act in his discretion only in two classes of matters – Firstly, where the matter deals with issues which are beyond the powers of the legislative assembly and where the President has delegated the powers and functions to the LG in relation to such matter. Secondly, matters which by law require the LG to act at his discretion or where he is exercising judicial or quasi-judicial functions.
The Court reiterated that considering Article 239AA and the 2018 Constitution Bench judgment, the LG is bound by the aid and advice of the Council of Ministers of GNCTD in relation to matters within the legislative scope of GNCTD. Further, any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant rules shall mean LG acting on behalf of GNCTD.
The Amendment Act
The Amendment Act covers the second situation contemplated by the Apex Court, which provides that the Union Government through the LG has the authority to act on its own discretion and without the aid and advice of the council of ministers of the GNCTD if a law requires him to do so. The Statement of Objects and Reasons to the Ordinance stated that there is an absence of a parliamentary legislation for dealing with the subject of ‘services’ in Entry 41 of the List II. Therefore, to fill this legislative void, the ordinance is being promulgated to provide for a comprehensive scheme of administration of services deployed in the administration of the national capital, and while doing so, the Centre invoked the Article 239AA(7)(a) of the Constitution.
Amendments introduced by the Ordinance were-
Creation of a National Capital Civil Service Authority. The Authority is tasked with recommending transfer and posting of officers. Further, it will also have the responsibility to make recommendations with regard to disciplinary proceedings of officers. The Authority will comprise the Chief Minister as chairperson, the Chief Secretary, and the Principal Home Secretary. The same, however, must be approved by the LG. The LG may send recommendations back to the Authority for reconsideration. However, in case of difference of opinion, the decision of the LG shall be final.
The Amendment Act, while taking away the executive power of Delhi Government with regard to the ‘services’ as upheld by the Apex Court in the NCT Case, has exploited the technicality in the NCT Case, where the Apex Court left room open for the Parliament to legislate over all the matters as envisaged under Article 239AA (3) (b) & (c).
Another argument is with respect to the ‘Triple Chain of Accountability’ principle, which entails a triple chain of command – civil service officers are accountable to ministers; ministers are accountable to the legislature; and the legislature is accountable to the electorate, and severance of any link of this triple chain would be antithetical to parliamentary democracy. The Amendment Act, by conferring powers over the transfer and posting of officers to the Authority may break the ‘Triple Chain of Accountability’, and may be construed as against the parliamentary form of democracy.
It is also relevant to mention that the Ordinance was challenged before the Apex Court, and while refusing to grant stay on the Ordinance, Court has referred the challenge to a constitutional bench for adjudication. The CJI led bench also observed that the issue whether the powers under Article 239AA(7)(a) of the Constitution could be invoked to pass the Amendment Act was not considered in its recent NCT Decision.
Contributors: Niyati Shroff, Manish Parmar