TUSSLE OVER SERVICES IN DELHI
The Constitution Bench headed by the Chief Justice of India D.Y. Chandrachud on May 11, 2023, 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 of public order, police, and land.
2. An ordinance issued by the government
- The recent Supreme Court 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, 2023, 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 that 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.
3. What does the Ordinance say?
- The government has used the Ordinance route to indirectly return to its original position which it had taken on 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 of Delhi's 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 the Delhi government departments by the majority of votes of the members present and voting.
- The Lieutenant Governor’s decision, in the case of a difference of opinion, would be final.
4. What gave rise to this dispute?
- Article 239 AA was inserted in the Constitution by the 69th Constitutional Amendment Act, of 1991.
- Based on the recommendations of the S Balakrishnan Committee, it gave special status to Delhi.
- It says that the National Capital Territory (NCT) of Delhi will have an Administrator and a Legislative Assembly.
- The Legislative Assembly “shall have the power to make laws for the whole or any part of the NCT w.r.t. any of the matters in the State List or Concurrent List in so far as any such matter applies to Union territories”.
- However, the legislative assembly of Delhi cannot legislate on the following three subjects – Police, Public Order, and Land.
- However, in the past few years, governance in the NCT has often been a subject of conflict between the Delhi government and the L-G.
5. Central & State Government’s Arguments
- The Central Government has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
- On the other hand, the Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
- The Delhi government had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of the basic structure of the Constitution.
6. Does the Ordinance go against the Supreme Court judgment?
- The Ordinance is based on the argument that the Supreme Court has acknowledged the superior authority of Parliament makes 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 fullfledged 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 the power to legislate upon subjects “to give effect to the aspirations of the people of NCTD”.
- It has a democratically elected government that 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 center, and the NCTD at the regional level.
- The May 11 judgment 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 apply 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.
7. What do 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 even though the LG’s powers were curtailed way back in 2018 by another Constitution Bench judgment.
- On May 11, the court 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.
For Prelims: Ordinance, Lieutenant Governor (LG), National Capital Territory (NCT) of Delhi, 69th Constitutional Amendment Act, of 1991, Article 239 AA, National Capital Territory of Delhi (Amendment) Act, 2021, Article 239AA(4), Article 239AA(3), and National Capital Civil Service Authority (NCCSA).
For Mains: 1. Discuss the power tussle between the Centre & Delhi Government in light of various constitutional provisions and supreme court judgments. (250 Words)
Previous year Questions
1. Consider the following statements: (UPSC 2012)
1. Union Territories are not represented in the Rajya Sabha.
2. It is within the purview of the Chief Election Commissioner to adjudicate election disputes.
3. According to the Constitution of India, the Parliament consists of the Lok Sabha and the Rajya Sabha only.
Which of the statements given above is/are correct?
A. 1 only
B. 2 and 3
C. 1 and 3
2. Which of the following are the discretionary powers given to the Governor of a State? (UPSC 2014)
1. Sending a report to the President of India for imposing the President’s rule
2. Appointing the Ministers
3. Reserving certain bills passed by the State Legislature for consideration by the President of India
4. Making the rules to conduct the business of the State Government
Select the correct answer using the code given below.
A. 1 and 2 only
B. 1 and 3 only
C. 2, 3, and 4 only
D. 1, 2, 3 and 4
3. In the context of India, which one of the following is the characteristic appropriate for bureaucracy? (UPSC 2020)
A. An agency for widening the scope of parliamentary democracy
B. An agency for strengthening the structure of federalism
C. An agency for facilitating political stability and economic growth
D. An agency for the implementation of public policy
Source: The Hindu