The story so far: A Constitution Bench headed by the Chief Justice of India D.Y. Chandrachud on May 11 held that the Delhi government can make laws and administer civil services in the national capital. The court limited the role of the Lieutenant Governor (LG), an arm of the Centre, over bureaucrats in the capital to three specific areas — public order, police and land. The judgment intended to strike a balance between the national interests of the Centre in the capital and the authority of an elected Delhi government to legislate and administer meaningfully through “professional” civil service officers deputed to its departments. However, on May 19, the Centre turned the tables on the judgment. The President promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to make a fresh claim of power over the services in the capital. The stated aim of the Ordinance is to “provide for a comprehensive scheme of administration of services” which “balances the local and domestic interests of the people of Delhi with the democratic will of the entire nation reflected through the President of India”.
What does the Ordinance say?
The government has used the Ordinance route to indirectly return to its original position which it had taken in May 21, 2015 through a Home Ministry notification. The notification, which formed the bone of contention between the Aam Aadmi Party (AAP) government and the Centre for the past eight years, gave the Lieutenant Governor (LG) power over the services. It required the LG to consult the Chief Minister only at his “discretion”. The notification had excluded Entry 41 (services) of the State List from the scope of powers of the Delhi government.
The Ordinance forms a “permanent” National Capital Civil Service Authority (NCCSA) with the Chief Minister as chairperson, and the Chief Secretary and Principal Home Secretary as Member and Member Secretary, respectively. The NCCSA exercises authority over civil service officers working in all Delhi government departments except those in public order, police and land. It would decide transfers, postings, prosecution sanctions, disciplinary proceedings, vigilance issues, etc, of civil service officers deputed to Delhi government departments by majority of votes of the members present and voting. The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.
This throws open a scenario in which bureaucrats in the NCCSA could possibly veto the Chief Minister. The Ordinance explains that the Chief Secretary would represent “the will of the officers of GNCTD” (Government of the National Capital Territory of Delhi).
The Supreme Court had envisaged a “neutral civil service” carrying out the day-to-day decisions of the Council of Ministers. The NCCSA attempts to bring civil service officers out of the administrative control of the elected Ministers, who embody the will of the people, and transform them into a power lobby. The NCCSA negates the intrinsic link between government accountability and the principle of collective responsibility highlighted in the judgment. The Ordinance, by creating the NCCSA, skirts the emphasis laid down in the judgment on the “triple chain of command” in the governance of Delhi. The court had held that the civil services were accountable to the Ministers of the elected government, under whom they function. The Ministers were in turn accountable to the legislature, and the legislature ultimately to the people of Delhi. The chain of command was forged by the Supreme Court to ensure democratic accountability.
The Ordinance also does not heed the President’s own Transaction of Business Rules of the Government of National Capital Territory of Delhi, 1993. The Supreme Court had held in 2018 that “a significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the Government of National Capital Territory of Delhi (NCTD), decision-making is by the government comprising the Council of Ministers with the Chief Minister at its head”. This view was reinforced on May 11, 2023.
The court had also dismissed the K. Balakrishnan Committee’s specific recommendation that the “services” should not be included within the legislative and executive ambit of the NCTD. The court held that the committee report was not relevant as it preceded the insertion of Article 239AA — the provision that deals with the governance structure of Delhi, in the 69th Constitution Amendment, 1991.
Does the Ordinance go against the Supreme Court judgment?
The Ordinance is based on the argument that the Supreme Court has itself acknowledged the superior authority of Parliament to make laws for the national capital. A review petition filed by the Centre in the Supreme Court claimed that Delhi is not a “full-fledged State” but only a Union Territory which is an extension of the Union. The Parliament is Delhi’s true legislature, the Centre has argued. However, the May 11 judgment addresses this contention by acknowledging that though Delhi is not a full-fledged State, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects in the State List and Concurrent List.
The unanimous judgment held that though Delhi is not a State under the First Schedule to the Constitution, it is conferred with power to legislate upon subjects “to give effect to the aspirations of the people of NCTD”. It has a democratically elected government which is accountable to the people of the NCTD. Under the constitutional scheme envisaged in Article 239AA(3), NCTD was given legislative power which though limited, in many aspects is similar to States. In that sense, with the addition of Article 239AA, the Constitution created an “asymmetric federal model” with the Union of India at the centre, and the NCTD at the regional level.
The May 11 judgment had also referred to how the majority in a 2018 Constitution Bench judgment had held that while NCTD could not be accorded the status of a State, the concept of federalism would still be applicable to NCTD.
The court had held that the executive power of the Delhi government was “coextensive” with its legislative power. That is, the executive arm of the government covers all the subjects, including services, except public order, police and land, for which the legislative arm can make laws.
What does the Ordinance and the judgment say about the LG’s powers?
The Ordinance has put the LG back in the driver’s seat by giving him the power to take a final call on any decision taken by the NCCSA regarding services. This is despite the fact that the LG’s powers were curtailed way back in 2018 by another Constitution Bench judgment.
On May 11, the court had agreed with its conclusions in 2018 that the LG was bound by the aid and advice of the Council of Ministers under Article 239AA(4) while exercising executive powers in relation to matters falling within the legislative domain of the legislative assembly of NCTD.
The court had held that even the “limited discretionary power” afforded to the LG “ought to be exercised in a careful manner in rare circumstances such as on matters of national interest and finance. The Lieutenant Governor could not refer every matter to the President”.
What lies ahead?
An Ordinance is not beyond judicial review of the apex court. If the 2023 Ordinance is challenged separately, the Union would have to prove the “extraordinary or emergent situation” which necessitated it to promulgate an Ordinance merely days after a Constitution Bench settled the law.
A Constitution Bench in DC Wadhwa versus State of Bihar had held that the power of the Executive to promulgate an Ordinance should not be “perverted to serve political ends”.