Parliament Passes Delhi Services Bill ( GNCTD Amendment Bill)

The Rajya Sabha on Monday passed the contentious Government of NCT of Delhi (Amendment) Bill, 2023 - which seeks to dilute the powers of the Delhi Government over services. The Bills was passed with 131 votes in its favour and 102 votes against it.

It was already approved by Lok Sabha on August 03.

Notably, the Bill has significant changes from the Ordinance promulgated by the Centre on May 19 a week after the Supreme Court ruled that the Delhi Government has power over the administration and control of civil servants except in matters relating to public order, police and land.

A key provision of the Ordinance was Section 3A, which held that the Delhi Legislative Assembly (and consequently the Delhi Government) will not have powers over Entry 41 of List II of the 7th Schedule of the Constitution, which relates to services. Notably, Section 3A also stated that the provision will prevail "notwithstanding anything contained in any judgement, order or decree of any Court", meaning thereby that the Ordinance nullified the effect of the Supreme Court.

However, in the Bill introduced in the Lok Sabha, Section 3A is conspicuous by its absence. However, the other provisions which seek to make drastic administrative changes in relation to governance of the national capital are retained in the Bill.

National Capital Civil Service Authority

The Bill seeks to establish a permanent authority named "National Capital Civil Service Authority" to take decisions with respect to the postings and control of civil servants.

The Authority will be headed by the Chief Minister of Delhi and will consist of the Chief Secretary, Government of National Capital Territory of Delhi and the Principal Secretary, Home, Government of National Capital Territory of Delhi. The Authority can make recommendations to the Lieutenant Governor regarding transfers and postings of all Group 'A' officers and officers of DANICS serving in the affairs of the Government of National Capital Territory of Delhi barring officers handling matters related to public order, land and police.

The Authority can also make recommendations to the LG regarding vigilance and non-vigilance matters for the purpose of initiation of disciplinary proceedings and grant of prosecution sanctions in relation to the above officers.

LG's decision to be final

The Bill seeks to confer the final authority to the LG. In case of any difference of opinion, the LG's decision will prevail.

Section 45D of the Ordinance modified in the Bill

Another key change in the Bill is the modified of Section 45D of the Ordinance, which gave power to the Centre regarding the appointments to statutory commissions and tribunals in Delhi.

According to the provision 45D of the ordinance- Notwithstanding anything contained in any other law for the time being in force, any authority, board, commission or any statutory body, or any office bearer or member thereof, constituted or appointed by or under any law for the time being in force, in and for the National Capital Territory of statutory Delhi, shall be constituted or appointed or nominated by the President.

In the Bill, the appointments shall be as follows :

In relation to bodies created under Parliament Law : members shall be constituted or appointed or nominated by the President; and

In relation to bodies created under the Delhi Assembly Laws : National Capital Civil Service Authority shall recommend a panel of suitable persons for constitution or appointment or nomination by the Lieutenant Governor, in accordance with the provisions of section 45H.

Supreme Court has clarified that Parliament can make law relating to services in Delhi, says Home Minister

While introducing the Bill, Home Minister Amit Shah denied that it is contradictory to the Supreme Court's judgment and said that the Court has recognized the power of the Parliament to make law in relation to services in Delhi.

"Constitution has given the House, power to pass any law regarding the state of Delhi. Supreme Court judgement has clarified that Parliament can bring any law regarding the state of Delhi. All objection is political", he said.

"In view of the special status of the National Capital Territory of Delhi, a scheme of administration has to be formulated by a Parliamentary legislation to balance both local and national interests to reflect the aspiration of the people through the joint and collective responsibility of the Government of India and the Government of National Capital Territory of Delhi", said the Centre in the Statement of Objects and Reasons of the Bill.

Opposing the Bill, INC MP Dr. Abhishek Manu Singhvi said, “This bill is wholly unconstitutional, fundamentally anti-democratic and a frontal assault on the regional voice and aspirations of Delhi. It violates all principles of federalism, all norms of accountability, models of assembly based democracy, it the basic structure."

The Bill covers all vigilance & non-vigilance cases for initiation of disciplinary actions for these officers. “The objective is clear: to create an environment of fear & hysteria, to intimidate civil servants to exercise control over them,” he added.

Raising the question on what is the collective consequence of all these provisions?, he said that the Bill reduces the NCT government, each Minister, and the Chief Minister to a cipher - at the mercy of not only the central government but any secretary appointed by it. It makes the elected government hollow.

Speaking against the Bill, MP Raghav Chaddha said bringing the Ordinance within days of passing the Supreme Court judgement the Government has challenged the majesty of the Court.The Bill undermines the principle of collective responsibility, he added.

Dissenting the passing of the Bill, Chaddha said that “the Ordinance is under challenge in the Supreme Court, which vide its order dated 20 July 2023 has referred the question of whether an Act of Parliament (and not just an Ordinance) can violate the substantive requirements of Article 239AA to a Constitution Bench. As the constitutionality of any Act that may be passed by the Parliament is already before a Constitution Bench of the Supreme Court, it will be proper to await the outcome of the decision before introducing the Bill.”

Article 239AA(7)(a) empowers Parliament to make a law to "give effect to or to "supplement" the provisions contained in Article 239AA. Under the scheme of Article 239AA, control over 'Services' lies with the Delhi Government. A Bill in line with the Ordinance is, therefore, not a Bill to "give effect to" or "supplement" Article 239AA but a Bill to damage and destroy Article 239AA, which is impermissible, he added.

Former CJI and MP Ranjan Gogoi while giving his maiden speech said, “what is sub judice before the Court is the validity of the ordinance and what the house is debating is validity of the law, the question which has been referred to the constitutional bench has nothing to do which has been debated in the House.”

The Bill takes away Article 3A from the ordinance, so the questions which has been referred is self answered…in my opinion the entire judgement was on Article 3A of the ordinance, so it the right of the members to debate on the Bill.

For NCT Delhi, the state legislature makes the law on the state subjects except three subjects, by virtue of Article 239 (3) (b)- parliament has power to frame laws beyond these three, that is exactly what the Bill is seeking to do, therefore there is no question of overreaching,” he added.

He further said that this law will be bad in law only if it violative of the Fundamental rights, any provision of the constitution and if it violates the basic structure. The only fundamental right that can be violated is Article 14 if the law is arbitrary. Asking whether it the Bill is arbitrary he said, “It doesn’t appear to be so.” Adding that since the Delhi is not a state, he said the Bill is not in violation of Federalism. While concluding his speech he stated that, “the Bill is perfectly legitimately valid…but what is permissible need not necessarily to be right.” “To me the Bill is correct, right, my conscience tells me to do something, I will do it and if somebody disagrees his conscience must be left free,” said the former CJI. 

It may be noted that the Delhi Government had approached the Supreme Court challenging the Ordinance. On July 20, the Supreme Court referred the matter to a Constitution Bench for adjudication. Section 45D of the Ordinance was also subjected to challenge by the Delhi Government, which objected to the appointment made by the President to the post of the DERC Chairperson.