New Delhi: The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 which replaces the contentious Delhi Ordinance on the control of services in the national capital was introduced in the Lok Sabha on Tuesday amid loud protests from opposition MPs who called it “unconstitutional”.
The introduction of the legislation saw the opposition under the INDIA alliance protesting in parliament and also accused the Modi government of “weakening federalism”.
Home minister Amit Shah has however said while introducing the bill that the objections raised by the opposition are only “political”.
The Bill will replace the Delhi Ordinance brought on May 19, overriding an order by the apex court which ruled that only Delhi’s elected government has authority over civil servants. The court also ruled that except for issues linked to land, police and public order, the lieutenant governor has “no independent decision-making powers” under the Constitution.
The bill’s statement of reasons and objects states that it is being brought because as the capital, Delhi has a unique status.
“Delhi being the capital of India has a unique status and certain distinguished features and there is need to promote the national interests without compromising the aspirations of the residents of Delhi. Article 1 of the Constitution defines the territory of India, comprising of States and Union territories and article 1 read with article 239 provides that the Union territories are to be governed solely by the President.”
Article 239AA confers special status on Delhi following the recommendations of the S. Balakrishnan Committee. It was inserted into the Constitution in 1991 by the 69th Amendment.
How the bill empowers the LG despite removing contentious Section 3A of the ordinance
While the new bill removes the contentious Section 3A of the ordinance that held that the Delhi legislative assembly will not have control over services under Entry 41 of List II of the Seventh Schedule of the Constitution; it empowers the Lieutenant Governor (LG) and makes him the final authority in several important matters.
Entry 41 of List II of the Seventh Schedule of the Constitution includes the State public services and State Public Service Commission under the State List.
The bill establishes the National Capital Civil Services Authority (NCCSA) which will make recommendations to the LG, who is appointed by the Union government.
The NCCSA will include the chief minister who will serve as the chairperson, the principal home secretary of Delhi, who will serve as the member secretary and the chief secretary of Delhi, who will serve as member.
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Both the principal home secretary and chief secretary will be appointed by the central government.
The NCCSA will make recommendations to the LG on matters related to transfers and postings, vigilance, disciplinary proceedings and prosecution sanctions of civil servants of Group A of All India Services (except Indian Police Service) and DANICS (Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services).
The decisions of the body will be based on a majority, and therefore creates the possibility for the Union government appointed members to overrule the decisions of the chief minister.
The LG will have the power to approve the recommendations of the NCCSA or ask for a reconsideration. The LG’s decision will also prevail over the NCCSA if there is a difference of opinion.
The bill also empowers the LG to exercise his “sole discretion” on several matters.
The matters that are at the LG’s sole discretion include matters outside the legislative competence of the Delhi Legislative Assembly but which have been delegated to the LG, or matters where he is required by a law to act in his discretion or exercise any judicial or quasi-judicial functions.
The law also curtails the elected government’s powers to issue orders on important matters by giving the final word to the LG on matters relating to those affecting peace and tranquility in Delhi, matters affecting Delhi government’s relations with the Central government, or any state government, the Supreme Court of India or the High Court of Delhi and such other authorities, summoning, prorogation and dissolution of the Legislative Assembly, among others.
The bill also allows department secretaries to take matters to the LG, chief minister and chief secretary without consulting the concerned minister.
Other changes from the Ordinance
In additional changes from the ordinance, the bill states that the power to appoint authorities, boards, commissions, statutory bodies, or office bearers will be with the President for any law of Parliament, and with the LG for any law of Delhi legislature.
The Ordinance in this regard had stated that the power to appoint authorities, boards, commissions, statutory bodies, or office bearers will lie with the President under any law.
The bill also does away with the provision included in the Ordinance that required the Civil Services Authority to submit an annual report to the central government and Delhi government, which will be tabled in Parliament and the Delhi Legislative Assembly.
While the ordinance stated that any matter of administrative importance which the President or the Delhi Chief Minister may consider necessary will be submitted to the LG prior to the issue of any order; the bill states that only matters of administrative importance which the chief minister may consider necessary will be submitted to the LG prior to the issue of any order.
Violation of the Constitution
In its analysis of the bill, PRS Legislative Research noted that by taking away the Delhi government’s power over services, it violates the constitution’s basic structure.
“The Bill effectively gives the central government powers over services in Delhi. If the Delhi government does not have control over civil servants, it cannot execute any programmes across any sector in its jurisdiction. This may violate the triple chain of accountability, which is an essential feature of parliamentary democracy,” the analysis said.
The Supreme Court in its May 2023 order had defined the triple chain of accountability and referred to the same while referring the AAP government’s challenge to the ordinance to a constitution bench last month.
Also read: Centre’s Ordinance on Delhi Services Violates the Spirit of Parliamentary Federalism
The court said that the triple chain of accountability “requires the permanent executives to be responsible to the elected government, the elected government to be responsible to the legislature, and the legislature to be responsible to the public.”
“The 2023 Ordinance abrogates the principles of collective responsibility and the triple chain of accountability which are important facets of NCTD’s governance structure,” it said.
What the AAP said
According to the AAP the bill goes a step further from the ordinance by not only taking away the power over services but also making the Delhi government completely powerless.
“It has not only taken away the power over services which was the prime bone of contention in the Supreme Court verdict and even in the ordinance but they have said that all the appointments that will be made by the Delhi government whether it is Delhi Jal Board or DERC will be done by the LG,” said Akshay Marathe, AAP spokesperson to The Wire.
“And what this has done is made the Delhi government completely powerless and its authority has been reduced to an advisory council at best. It also says that any cabinet decision will also be open to challenge by the bureaucracy.”
The AAP has also accused the BJP of bringing in this law to bring Delhi under its control since it has failed to win any state election in Delhi in the last two decades.
“History of Delhi shows that the governments in the centre have always moved towards taking Delhi to a wholly directly elected government. In the last 25 years, since the BJP has never been able to win the state elections, they have chosen to turn the wheel back. Turning this wheel back is an affront to the idea of democracy not just to Delhi but to the whole country,” Marathe added.
The ordinance had emerged as the latest bone of contention between the AAP government in Delhi and the Bharatiya Janata Party (BJP)-led Union government.
Delhi chief minister Arvind Kejriwal has also met with opposition party leaders in recent weeks to cobble up support to block the Bill when it is brought to parliament.
While the members of the INDIA alliance rose in support of the party by opposing the bill in Lok Sabha, the BJP found favour in the BJD.
The AAP, however, is looking at the Rajya Sabha to block the Bill where the BJP-led National Democratic Alliance (NDA) does not have the majority on its own. The support that the Modi government is likely to get from BJD and the YSRCP may however place the AAP in an unfavourable position.
“It is unfortunate that BJD has supported the government,” said Marathe.
“Because at the end of the day if such a bill can be brought for Delhi what stops the government from doing so in Odisha?”
He added that the party will proceed with the strategy in the Rajya Sabha that it has the support of the parties under the INDIA alliance.
“Even the BRS has committed so we are hoping that the bill gets defeated,” he said.
“If the bill does get passed in Rajya Sabha, the Supreme Court case will continue on the basis of the Act and not the Ordinance. We expect the Supreme Court to hold the same view it did earlier on the paramount nature of the separation of power and strike down this Act if it comes to that.”
Implications for bureaucrats across the country
Analysts say that the bill not only has major implications for bureaucrats in Delhi but all over the country.
“Over the years Delhi has moved towards becoming a state from a union territory. The only difference is that it is the capital so they say central government needs some control. However if they want control on policing for instance they can make special provisions for that. But now what they have done is with this bill they have reverted Delhi back to a union territory for all intents and purposes,” M.G. Devasahayam, former IAS officer, said to The Wire.
“The real control is exercised through the bureaucracy as the mandatory powers rest with the bureaucracy. The chief minister cannot sign an order of transfer or posting himself or even the allotment of any project or cannot proclaim Section 144 for instance. All this is done by bureaucrats as statutory authority. If this control is not with the CM then it is not a state. You have converted the elected Delhi government into a supernumerary.”
Devasahayam added that it has major implications for bureaucrats and other states.
“The government is trying to negate the character of the All India Services,” he said pointing to recent proposed moves by the Union government to amend the Indian Administrative Service (Cadre) Rules, 1954 to enable it to forcefully borrow an Indian Administrative Service (IAS) officer who is serving a state government, and pension rules.
According to Devasahayam, the All India Services provide a “healthy way of achieving national integration”.
“Every state has a cadre. The officers under All India Services start working in the state and then there is a process of deputation. This is a healthy way of achieving national integration, pooling resources and experience throughout the country and bringing good governance. But what the government wants to do is to convert All India Service to Central Services and bring it completely under its control.”