Introduction
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 (or The Delhi Services Bill 2023) was approved in the Lok Sabha on August 03, 2023. The bill was passed in the Rajya Sabha on August 07, 2023 and received the assent of the President on August 11, 2023, and became an Act. This Act has replaced the GNCTD Bill 2023, which was to replace the May 19 ordinance, promulgated by the central government to exclude ‘services’ from the jurisdiction of the Delhi Legislative assembly. Thus, this Act amends the GNCTD Act 1991.
Main Provisions
Some of the major provisions of the GNCTD (Amendment) Act, 2023 are mentioned below:
- According to this Act, the central government is authorised to frame laws and policies related to the affairs of the Government of the National Capital Territory of Delhi, such as the terms and conditions of the service of officers and employees, and their roles, etc.
- One of the main provisions of the Act is to set up the National Capital Civil Services Authority (NCCSA), which would comprise the Delhi chief minister as chairperson, the chief secretary of the Delhi government as a member, and the principal home secretary of the Delhi government as member secretary. The two secretaries would be appointed by the Centre. The main function of this authority will be to advise the lieutenant governor (LG) of Delhi in matters related to the postings and transfers of government officials along with other disciplinary matters and vigilance. The NCCSA will take decisions on the basis of the majority vote of the members that are present. This implies that the services would be primarily under the control of the members appointed by the Centre and that suggestions and objections raised by the CM may get ignored.
If there is a disagreement between the LG and the Authority, the decision of the LG will be binding.
- The Act revokes the ordinance regarding service control in the Capital and defies the decision of the Supreme Court (SC), which supported the elected state government. At the same time, it gives additional powers to the LG on the matters of Delhi administration.
- ‘Services’ have been taken away from the hands of the Delhi Legislative Assembly. That is, the power to frame laws on ‘services’ has been granted to the central government. This government will exercise its discretion in matters related to the conditions of service of people elected to the services, i.e., their qualifications, terms of service, powers and roles, salaries and suspension.
The subject ‘Services’ encompasses all the matters regarding the appointment, posting and transfer of the Delhi government employees along with vigilance.
- The LG has been authorised to solely decide on a number of matters, such as the matters associated with the summoning, discontinuation and dissolution of the Delhi Legislative Assembly; and the matters associated with the NCCSA.
- It is in the power of the Delhi Legislative Assembly to frame laws regarding subjects in the State and Concurrent Lists, barring public order, police, and land, while the Delhi government implements these laws regarding the same subjects. Besides, Parliament is also authorised to frame laws regarding all subjects in the State and Concurrent Lists associated with Delhi. The administrator of Delhi is the LG who performs his duties on the aid and advice of the council of ministers of Delhi. The functioning of the Delhi Legislative Assembly and the Delhi government should be carried out in compliance with the GNCTD Act, 1991, in which the powers of the LG, the Delhi Legislative Assembly, and the responsibility of the chief minister are all defined.
Earlier Developments
Over the past few years, there has been a tussle between the Delhi government and the central government over the issue of power sharing. So, many a time, the SC has intervened and given its ruling.
Earlier, on May 11 this year, the SC ruled that the Delhi government will have complete control over all the services except public order, land, and police as these three subjects are under the control of the central government. Besides, it was also ruled that the LG cannot take any decision independently and has to act on the advice of the council of ministers.
On May 19, the GNCTD (Amendment) Ordinance, 2023 was promulgated by the President of India, authorising the Delhi government to advise the Delhi LG regarding affairs of postings, transfers, vigilance along with some incidental concerns. Further, it removed the services from the control of the Delhi Legislative Assembly.
Major Issues and Analysis
- According to the GNCTD (Amendment) Act, 2023, the ‘Services’ subject has been eliminated from the control of the Delhi Legislative Assembly. However, the Act may violate the Constitution as the services would not be under the control of the Delhi government whereas its executive and legislative powers are co-extensive. Besides, out of the three members of the NCCSA, two are appointed by the Centre and they may vote against the Delhi chief minister.
Consequently, these will lead to the constitutional issues given below:
- The powers of the Delhi Assembly that are stated in the Constitution are amended by the Act According to the Article 239AA of the Constitution, the Delhi Assembly has the power to frame laws on all subjects mentioned in the State and Concurrent Lists, except for public order, police and land. Now, by stating that the power to frame laws on ‘Services’ also would not be with the Delhi Assembly, the Act increases the number of subjects on which the Assembly cannot frame laws. Thus, it would alter the constitutional framework.
Besides, Parliament is also empowered to frame laws to supplement the provisions regarding the powers of the Delhi Assembly. This is not considered ‘an amendment’. So if this amendment is allowed by implication, the complete State List can be removed from the control of the Delhi Assembly. Consequently, the Delhi Assembly and the Delhi government may become unnecessary.
- The basic structure of democracy may be violated The basic structure may be violated if ‘services’ go under the control of the Centre. In a democratic set-up, there is a triple chain of accountability, i.e., civil servants are answerable to ministers, who are in turn answerable to the legislatures, who are further answerable to the public. This chain would break if the first link of this chain was cut off. Consequently, the principle of parliamentary democracy would be violated.
- There may not be any limitation on the LG to take decisions on the aid and advice of the council of ministers. Under Article 239AA, the LG must act on the advice of the council of ministers, barring when he is functioning in his discretion.
As per the Act, the sole discretionary power of the LG on various matters has been expanded. Besides, in the event of a difference of opinion between the LG and the chief minister, the LG’s opinion will prevail. As a result, the principle of the LG deciding on the advice of the council of ministers may be violated. Besides, these provisions show that the decision-making power does not lie with the elected government.
The LG has the sole discretionary powers in a number of matters, such as deciding the time to summon the Legislative Assembly. So, a session cannot be summoned by the chief minister even if it is regarding critical government business.
- The Act contains some vague terms According to the GNCTD Act 1991, the LG may take a decision at his discretion in certain matters. These include
- matters assigned to the LG, as they are outside the purview of the Delhi Legislative Assembly; and
- matters in which he has to perform judicial or quasi-judicial functions or where a law authorises him to act at his discretion.
The Act states that the LG must act at his sole discretion in these matters. This raises the question, ‘What is the difference between sole discretion and discretion’?
- The LG is supposed to be informed about certain matters that do not have any specific criteria The Act states that the LG, along with the chief minister and the chief secretary, must be informed about certain matters by the concerned department secretary. These include controversial matters between the Delhi government and the Centre/any state government/the Supreme Court/the Delhi High Court. However, the Act does not specify which matters are regarded as ‘controversial’.
Further, the department secretaries can directly go to the LG, the chief minister and the chief secretary and make them aware of the matter without even referring the matter first to the concerned minister. Consequently, the regular chain of command would be obstructed, for the concerned minister would not be able to give any inputs for the issues associated with his/her own ministry. Besides, this may violate the principle of collective responsibility of the cabinet.
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