On August 7, 2023, the Rajya Sabha approved the Government of NCT of Delhi (Amendment) Bill, 2023 (GNCTD (Amendment) Bill, 2023), a controversial bill aimed at reducing the authority of the Delhi Government over services.
The bill received 131 votes in favour and 102 votes against. It had already been passed by the Lok Sabha on August 3.
Background: Question Of Power Sharing Between Delhi Government And Central Government
- Unlike other Union Territories (UTs) which are directly governed by the President or an appointed administrator, Delhi and Puducherry have their own legislatures and councils of ministers.
- Delhi’s Legislative Assembly has the power to make laws over subjects in both the State and Concurrent Lists, excluding areas of police, public order, and land. This is a power not provided to most other UTs.
- The Delhi government also exercises executive power over the same subjects where it can legislate.
- The Parliament reserves the right to legislate over all matters in the State and Concurrent Lists related to Delhi.
- There is a Lieutenant Governor (LG) appointed as the administrator of Delhi, whose operations are aided and advised by the council of ministers of Delhi.
- The functioning of the Delhi Assembly and the Delhi government is governed by the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. This Act outlines the Assembly’s powers, the LG’s discretionary powers, and the Chief Minister’s duty to provide information to the LG.
- The Supreme Court has often dealt with the issue of how power is shared between the Delhi government and the central government.
- On May 11, 2023, the Supreme Court decided who between the Delhi government (under the Chief Minister) and the Lieutenant Governor (appointed by the President) had authority over services and civil servants in Delhi.
- The Court said that the Delhi government could control services in Delhi. However, it couldn’t control things related to police, public order, and land, which are under the central government’s control.
- The 2023 judgement supported another SC verdict delivered in 2018, where the Supreme Court said that the Lieutenant Governor didn’t have the power to make decisions on his own and had to follow what the Council of Ministers said.
- After the Supreme Court’s decision about control over services in Delhi, the GNCTD (Amendment) Ordinance, 2023 was passed on May 19, 2023. This Ordinance is being challenged in the Supreme Court.
- The GNCTD (Amendment) Bill, 2023, which will replace the Ordinance, was introduced in the Lok Sabha on August 1, 2023. If will take effect retrospectively from May 19, 2023.
GNCTD (Amendment) Bill, 2023: Key Features
National Capital Civil Services Authority
- The GNCTD (Amendment) Bill, 2023 establishes the National Capital Civil Services Authority. This authority is responsible for making recommendations to the Lieutenant Governor of Delhi (LG) on various service-related matters. These matters include transfers and postings, vigilance issues, disciplinary proceedings, and prosecution sanctions for Group A of All India Services (excluding the Indian Police Service) and DANICS.
- The Authority will consist of the: (i) Chief Minister of Delhi as Chairperson, (ii) Principal Home Secretary of the Delhi government as Member Secretary, and (iii) Chief Secretary of the Delhi government as member.
- The central government will appoint both the Principal Home Secretary and Chief Secretary.
- All decisions of the Authority will be based on a majority vote of the members present and voting. The quorum for a meeting is two people.
Powers Of The Lieutenant Governor
- The Lieutenant Governor (LG) has discretionary powers in matters that fall outside the legislative competence of the Delhi Legislative Assembly but have been delegated to him.
- The LG also has discretionary powers in matters where he is required by law to act in his discretion or exercise any judicial or quasi-judicial functions.
- The Bill expands the discretionary role of the LG by allowing him to approve the recommendations of the Authority or return them for reconsideration.
- In the event of a difference of opinion between the LG and the Authority, the LG’s decision is final.
Disposal Of Matters By Ministers
- A Minister of the Delhi government can issue standing orders for disposal of matters.
- The order must be issued in consultation with the relevant Department Secretary.
- Certain matters must be submitted to the Lieutenant Governor (LG) for his opinion before issuing any order.
- These matters include proposals affecting the peace and tranquillity of Delhi, relations with the central government, Supreme Court, or other state governments, summoning, prorogation, and dissolution of the Legislative Assembly.
- The LG has the sole discretion to give an order on these matters.
Criticism Of NCT Amendment Bill, 2023
Remember This: As per Article 239AA, the LG has to act on the aid and advice of the Council of Ministers, except when exercising his functions in his discretion. Under the 1991 Act, the LG has the power to summon, prorogue, and dissolve the legislative assembly. However, he is bound to act on the aid and advice of the Council of Ministers.
- The amendment Bill undermines the core principles of the federal system, favouring centralised authority and arbitrariness. It also raises concerns – if the central government can coerce the elected government in prominent Delhi to submit to bureaucratic control, it can potentially exert similar influence elsewhere with even greater ease.
- The NCT (Amendment) Bill, 2023 expands the matters that require the LG’s opinion to include relations of the Delhi government with the Central government, giving the LG sole discretionary power on these matters.
- In the event of a difference of opinion between the LG and the Chief Minister, the Bill allows the LG’s opinion to take precedence, thereby bypassing the elected government’s decision-making power.
- These provisions may be in violation of the principle of the LG acting on the aid and advice of the Council of Ministers on matters within their executive competence.
- The proposed changes contradict the Supreme Court’s 2018 judgment stating that the decision-making power lies with the elected government, not the LG.
- By granting the LG the power to override the Council of Ministers’ decisions and exercise sole discretionary power on matters like summoning, proroguing, and dissolving the Legislative Assembly, the Bill may prevent the Chief Minister from convening essential government sessions.
- This may be a constitutional violation as it impedes the democratic functioning of the elected government.
69th Amendment Act?
In 1991, the Sixty-Ninth Amendment Act bestowed a unique status upon the Union Territory of Delhi, designating it as the National Capital Territory of Delhi. This amendment also facilitated the establishment of a legislative assembly comprising 70 members, as well as a council of ministers consisting of 7 members, to govern Delhi.
What Is article 239AA?
Inserted into the Constitution via the 69th Amendment Act of 1991, Article 239AA confers a unique status onto the National Capital Territory (NCT) of Delhi. It mandates the establishment of a Legislative Assembly and a Council of Ministers for the NCT, led by a Chief Minister.
The Legislative Assembly is empowered to legislate on a wide range of topics listed in the State List and the Concurrent List, barring specific exceptions detailed in the Constitution. The Council of Ministers shall be responsible to the Legislative Assembly.
Timeline On Key Legislations And Judgements On Delhi
1956
- The States Reorganisation Act was enacted, resulting in the reclassification of Delhi as a Union Territory. This significant administrative change marked a pivotal moment in the governance of the region.
1991-92
- The 69th Constitutional Amendment (Article 239AA) was enacted to designate Delhi as a Union Territory with its own legislative assembly.
- The Government of National Capital Territory of Delhi (GNCTD) Act was enacted in 1991.
- The 70th Constitutional Amendment passed which provides for certain laws of Parliament (amending Article 239AA) to not be deemed as an amendment to the Constitution.
2015
- The Ministry of Home Affairs issued a notification that transfers control over services from the Delhi legislature to the Lieutenant Governor (LG). This empowers the LG to carry out functions on behalf of the Central Government in relation to the same.
2016
- The Delhi High Court ruled that services fall outside the jurisdiction of the Delhi legislative assembly and executive, affirming the distinction between their respective roles.
2018
- The Supreme Court decreed that the Lieutenant Governor (LG) must act based on the “aid and advice” of the council of ministers of Delhi. This ruling emphasises the importance of collaborative decision-making and upholds the principles of democratic governance.
2019
- A two-judge bench of the Supreme Court delivered a split verdict while ruling over the issue of services.9
2021 - The Union government amended the GNCTD Act, 1991, expanding the list of matters where the LG’s opinion was mandatory and the nature of Bills that LG could refer to the President.
2023
- The Supreme Court ruled that the Delhi government has control over services in Delhi.
- Central government promulgated an Ordinance to amend the GNCTD Act, 1991 to exclude “services” from the purview of Delhi legislature.
- The GNCTD (Amendment) Bill, 2023 was introduced in Lok Sabha on August 1, 2023 to replace the Ordinance.