From dropping a contentious provision that was apparently inserted to overcome the effect of the May 11, 2023 judgment of the Supreme Court giving the control of bureaucrats to the Delhi government, to changing the manner in which tribunals’ heads are to be appointed in the national capital, the bill that is set to replace the Delhi services ordinance has incorporated some key changes.
Reviewed by HT, the Government of National Capital Territory of Delhi (Amendment) Bill, 2023 to be
From dropping a contentious provision that was apparently inserted to overcome the effect of the May 11, 2023 judgment of the Supreme Court giving the control of bureaucrats to the Delhi government, to changing the manner in which tribunals’ heads are to be appointed in the national capital, the bill that is set to replace the Delhi services ordinance has incorporated some key changes.
Reviewed by HT, the Government of National Capital Territory of Delhi (Amendment) Bill, 2023 to be introduced in Lok Sabha on Monday by Union home minister Amit Shah, has dropped Section 3A of the May 19 ordinance, placed in to take “services” out of the purview of the elected government in Delhi.
Section 3A of the ordinance stated: “Notwithstanding anything contained in any judgement, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto.”
Entry 41 of List II relates to state public services and state public service commission.
The bill, however, does not have Section 3A and thus, no provision that would directly mean the May 11 apex court judgment will not have any bearing on the proposed law that seeks to denude the Delhi government of the power to control bureaucrats.
Representatives of the Delhi government did not respond to requests for a comment on these observations.
On July 20, the Supreme Court had questioned the Centre over Section 3A as it referred to a Constitution bench of five judges the Delhi government’s challenge to the 2023 Government of National Capital Territory of Delhi (GNCTD) Ordinance, giving the Centre control over the state’s bureaucracy.
On that day, solicitor general Tushar Mehta and senior counsel Harish Salve, appearing for the Centre and the Lieutenant Governor (LG) respectively, submitted that the final shape of the legislation was yet to take place and that the ordinance may see some changes when it is introduced as a bill.
In its reference order on July 20, the court alluded to Article 239-AA(7), which was resorted to by the Centre to take away “services” from the elected government, but the previous two Constitution bench judgments in 2018 and 2022 had no occasion to deal with it.
Article 239-AA(7) empowers Parliament to make laws for giving effect to or supplementing the provisions contained in Article 239AA — the provision that guides the administration of Delhi.
The two issues framed for an authoritative judgment by the constitution bench were: First, what are the contours of the power of Parliament to enact a law under Article 239-AA(7); and second, whether Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for Delhi.
The issues were framed after Delhi government’s petition pressed that the Centre has completely amended the Constitution by abrogating to itself the power to control bureaucrats despite the elected government having the legislative power to do so.
The bill to replace the ordinance is curiously silent on the use of Article 239-AA(7), and simply refers to the umbrella provision - Article 239AA --- empowering the Centre to create the National Capital Civil Service Authority (NCCSA). This authority is headed by Delhi chief minister but comprises the chief secretary and the principal home secretary --- two officials who report to LG --- to make recommendations to LG regarding matters concerning transfer, postings, vigilance and other matters.
The third significant change the bill has is in the language of Section 45D. The ordinance had laid down that President will appoint the chairperson and members of any authority, board, commission or any statutory body functioning in Delhi.
This provision featured in the battle between the Centre and the Aam Aadmi Party (AAP) government over the appointment of the Delhi Electricity Regulatory Commission (DERC) chief, who is expected to be named by the top court in the first week of August since its suggestion to the CM and LG for amicably deciding on one name failed to yield a positive result.
The bill changes the manner in which the chairpersons and members are to be appointed. It prescribes that for a body constituted under a central law, President will be the appointing authority while for a body constituted under a law framed by Delhi assembly, NCCSA will send the recommendations to LG, who will have the final say.
The bill also removed the requirement of NCCSA furnishing an annual report on its functioning to the Centre and the Delhi government, which, under Section 45-I of the ordinance, were to be laid before Parliament and Delhi assembly.
With the bill being introduced and some crucial changes being made, it remains to be seen whether the Delhi government will need to reframe its legal challenge and the strategy before the Supreme Court, which has converged its adjudication on the provisions in the ordinance.
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