INTRODUCTION
The Government of National Capital Territory of Delhi (Amendment) Bill 2023[1] (GNCTD), also known as The Delhi Services Bill, has become law. It got the President’s assent on 11th August, 2023. It gives the centre more power over the administrative services of the capital. The Bill replaced the ordinance promulgated by the president on 19th May 2023 which gave the control of services to the centre. The ordinance amended the GNCTD Act, 1991[2] in which services were placed under Delhi’s government purview. The bill was proposed in the monsoon session of the Parliament and it was passed in the Lok Sabha on 3rd August 2023 and in the Rajya Sabha on 7th August 2023. The opposition parties vehemently opposed the bill calling it undemocratic, unconstitutional, and deviating from constitutional ethos. It is a colourable legislation as the centre encroaches upon the domain of Delhi’s government by passing the ordinance. Whenever the legislature makes a law or amends it, it must be in conformity with the Constitution of India which is the supreme law of the land and any law not in consonance with the supreme law of the land is unconstitutional. The Federal structure being the basic feature of our constitution, must be followed while making or applying any law. The Government of National Capital Territory of Delhi (Amendment) Bill, 2023[3] is violative of constitutional morality as well as the federal structure of India.
CONSTITUTIONAL MORALITY AND DELHI SERVICES BILL
Constitutional morality refers to the upholding of constitutional values in a democracy. The Government of National Capital Territory of Delhi (Amendment) Bill 2023[4] grants the Lieutenant General power over transferring and posting officials which was earlier under Delhi’s elected government. More powers are vested in the Lieutenant General, who is appointed by the centre which is seen as violative of the constitutional ideals and values.
In Govt. of NCT of Delhi v Union of India,[5] The 5-judge constitutional bench of the Supreme Court led by Hon’ble Dr Justice D.Y. Chandrachud ruled over the issue of who controls the services or bureaucracy in the capital. It decided in favour of the Delhi government and granted it most of the services in the capital except public order, land, and police. The court interpreted Article 239 AA(3)(a)[6] of the Indian Constitution and based on it granted key control over administrative services to the government of Delhi. The Apex Court also said that civil servants should be accountable to the elected government, which is ultimately accountable to the electorate. The Centre on 19th May 2023 defied the Supreme Court judgment[7] and promulgated the ordinance which took away the power of the Delhi government over services and vested the power of services to the Centre. The ordinance proposed was a complete disregard and defiance of the Apex court’s decision which is constitutionally immoral. It raised suspicion over the centre’s intention vis-à-vis controlling services in the capital by undermining the prevailing Delhi government and the people who elected it. It drew sharp criticism from the ruling Aam Aadmi Party and the other opposition parties. The Constitution Bench in DC Wadhwa versus State of Bihar[8], had held that the power of the Executive to promulgate an Ordinance should not be “perverted to serve political ends”.
The bill is mostly the same as the ordinance; however, there are a few changes. The bill removed Section 3A[9] of the ordinance. The section held that under Entry 41 of List II of the Seventh Schedule of the Constitution[10], the Delhi Legislative Assembly will not have control over services. This schedule is about the State Public Services and State Public Service Commission which are under the State List.
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 establishes the National Capital Civil Service Authority (NCCSA).[11] The NCCSA will recommend the transfers and postings of group A officers and officers of Delhi, Andaman, and Nicobar Island Civil Services (DANICS) who are serving in the Delhi government.[12] The NCCSA is a 3-member body that will consist of the Chief Minister and two Union-appointed members—the Principal Home Secretary and the Chief Secretary.[13] The Principal Home Secretary of Delhi and the Chief Secretary of the Delhi Government will be appointed by the centre. These members will recommend to the Lieutenant General the transfer and the appointments regarding civil services. However, any decision on transfer and appointment solely vests within the Lieutenant General’s authority.[14]
THE FEDERAL STRUCTURE AND THE DELHI SERVICES BILL, 2023
The distribution of powers is an essential feature of federalism. India has a federal form of government in which powers are distributed between the centre and states, but there is an apparent unitary bias towards the centre, as the centre is granted more powers for strong and effective central machinery. Powers vested in the state should not be infringed upon by the centre. States are not subordinate to but are co-ordinate with the centre. The bill is against the principle of the federal structure of Indian polity by giving control of bureaucratic services of Delhi to the centre and is thus violative of the concept of a ‘triple chain of accountability’ as defined by the Supreme Court in Govt. of NCT of Delhi v Union of India[15].
According to the bill[16], Delhi is the national capital and so its administration rests with the President. The bill would balance the interest of the nation with the interest of the Union territory of Delhi in the administration of the capital to the manifestation of the will of the people reposed in the central government as well as the Delhi government.[17]
As per Article 239AA, [18] The LG is bound to take aid and advice from the council of ministers however, the bill grants sole power to the LG to make decisions, and he is not bound to take such aid and advice. In a federal system, the elected representatives of a State and Union Territory must be granted the administrative power and decision and policy-making power as they are well acquainted with the issues faced by the State and its people. Thus, decision-making policies, instead of being centralized should be decentralized to make them effective for the electorate.
CONCLUSION
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023[19] which has now become a law is highly controversial as it directly affects the governance in Delhi. It will take the administrative powers out of the purview of Delhi’s government. This drastic change will impact how the capital is governed as the bureaucracy will work under the guidance and direction of the centre. The bill is seen as violative of the basic structure of the constitution and the federal system of India as the centre is given more power than the elected government. The centre will have authority over the bureaucracy inter alia through transfers, appointments, and postings. The said bill is violative of the judgement[20] given by the Supreme Court on May 11, 2023, which gave the services to the Delhi government. The centre should not intervene in the matter of the elected government and it should not compromise on the federal system on its whims and disregard the Apex court order and the elected government.
Author(s) Name: Simar Sarup Kaur (Jamia Millia Islamia)
References:
[1] Government of National Capital Territory of Delhi (Amendment) Bill 2023
[2] Government of National Capital Territory of Delhi Act 1991
[3] Government of National Capital Territory of Delhi (Amendment) Bill 2023
[4] Ibid
[5] Govt. of NCT of Delhi v Union of India (2023) SC 606
[6] Constitution of India 1950, art 239AA(3)(a)
[7] Govt. of NCT of Delhi v Union of India (2023) SC 606
[8] DC Wadhwa v State of Bihar (1987) SC 579
[9] Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, S 3A
[10] Constitution of India 1950, Sch VII
[11] Government of National Capital Territory Of Delhi (Amendment) Bill 2023, s 45E (1)
[12] Government of National Capital Territory Of Delhi (Amendment) Bill 2023, s 45H(1)
[13] Government of National Capital Territory Of Delhi (Amendment) Bill 2023, s 45E (2)
[14] Government of National Capital Territory of Delhi (Amendment) Bill 2023, s 45H (3)
[15] Govt. of NCT of Delhi v Union of India (2023) SC 606
[16] Government of National Capital Territory of Delhi (Amendment) Bill 2023
[17] Himanshu Mishra, ‘What’s the Delhi ordinance bill that will be tabled in Parliament’ (India Today, 31 July 2023) <https://www.indiatoday.in/india/story/delhi-ordinance-bill-aap-arvind-kejriwal-lg-vk-saxena-centre-amit-shah-table-opposition-support-2414039-2023-07-31> accessed 17 August 2023
[18] Constitution of India 1950, art 239AA
[19] Government of National Capital Territory Of Delhi (Amendment) Bill 2023
[20] Govt. of NCT of Delhi v Union of India (2023) SC 606
