Analysis of The Government of National Capital Territory of Delhi (Amendment) Bill, 2023

BACKGROUND

• The Central Government notified the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 in May to implement provisions for exercising its administrative powers in the UT of NCT of Delhi. This Ordinance will now be introduced, and considered during the Monsoon Session of the Parliament, as the ‘Government of National Capital Territory of Delhi (Amendment) Bill, 2023’.
• It is for the first time that the Central Government has invoked its powers under Article 239 AA(7) to bring certain services out of the domain of the Delhi Legislative Assembly. As per Article 239AA of the Constitution of India, the Delhi Legislative Assembly has the power to make laws on subjects in the State List and the Concurrent List (including those related to the control of service personnel), barring: (i) police, (ii) public order, and (iii) land^[1]. Sub-Clause (7) of A.239AA empowers the Parliament to make laws which can give effect to or supplement the aforementioned services.
• In 2018, the ruling Delhi State Government party approached the Supreme Court, citing obstruction of its decisions relating to service personnel by the Central Government^[2]. On 11th May, 2023, the Supreme Court delivered a judgment stating that the state government of Delhi has 'legislative and executive power over services' in the National Capital Territory. The judgement stated that the Lieutenant Governor is bound by the elected government's decision on the services of Officers, including transfer and posting, determining the tenure of office and salaries, among others^[3].
• Keeping in view of the observations and directions passed by the Supreme Court, the Central government promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023⁴ to exercise its powers on administrative services including matters related to appointments and transfers of employees of the Delhi government, and vigilance.

KEY PROVISIONS OF THE ORDINANCE/BILL⁵

S.No.	Provisions	Amendment
1.	New Definitions	In the ordinance, new definitions have been added to provide a clarity on the position and role of Lieutenant Governor and Ministers of the Govt of NCT of Delhi. It also defines- All India Services, National Capital Civil Service Authority, Chief Secretary, Group ‘A’, ‘B’ and ‘C’ officers, Principal Home Secretary, Secretary.
2.	Empowers Union Government to Legislate Over Services	Allows the Central Government to make such key decisions related to government personnel posted in New Delhi. However, it is only applicable to Group    A     Officers6 and     Officers    of DANICS (Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Services) who are serving in the affairs of Government of NCT of Delhi7.

• Economic Times. (May, 2023). Centre moves SC seeking review of verdict that gave Delhi govt control over services.
• The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, No.1 of 2023, Extraordinary Gazette Part-II-Section 1, Published on 19th May 2023.
• This applies to Officers belonging to All India Services, except the officers of the Indian Police Service; (b) who are classified as Group 'A' officers, under rule 4 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
• Ministry of Law and Justice (Legislative Department). (May, 2023). .

S.No.	Provisions			Amendment
3.	Enhances         Powers Lieutenant Governor	of	the	Provides the following powers to the Central       Government     (through     the Lieutenant Governor) with respect to Officers serving in the affairs of Government of NCT of Delhi8: -            Determining the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of officers and other employees appointed or posted. -            Declaring the powers, duties and functions of officers and other employees appointed or posted. -            Stating the qualifications of candidates for appointment to the posts and the manner of selection for the appointments. -            Recommending the transfer or posting of the officers and other employees posted. -            Decide the procedure to be followed in imposing any penalty, suspension (while case is pending inquiry) and the authority which will order such suspensions or penalties and the officer to whom the appeal or revision shall lie.

S.No.	Provisions	Amendment
4.	Public Service Commission for NCT	The Ordinance gives clarity to the appointment of Group ‘A’, ‘B’ and ‘C’ posts. It provides that for Group ‘A’ and ‘B’ gazetted posts, UPSC will be the appointing authority and for Group ‘B’ and ‘C’ non-gazetted posts, DSSB (Delhi Subordinate Services Selection Board) will be the appointing authority.
5.	Establishes a National Capital Civil Services Authority	Establishes the ‘National Capital Civil Service Authority’, comprising of the Chief Minister of Government of NCT of Delhi (Chairperson), the Chief Secretary of Delhi (Member, ex officio), and the Principal Home Secretary, of Delhi (Member Secretary, ex officio)9.
6.	Role of National Capital Civil Services Authority	It shall have the responsibility of recommending transfers and postings of all Group ‘A’ and DANICS officers. It can also make recommendations for● Stability of postings of officers ●      Rotational Transfer postings ●      Determine suitability of officers for making Head of the department ●      Transfer and postings of all officers of GNCTD It can also make policy for- ●      Capacity building of officers ●      Effectiveness in public service delivery ●      Ensuring good governance

9 Id.  

S.No.	Provisions	Amendment
		● Ensuring              transparency  in administration
7.	Final Decisive Power with the Lieutenant Governor	The recommendations made by the Civil Services Authority will then be examined by the Lieutenant Governor, who has the power to return the recommendation for reconsideration to the National Capital Civil Service Authority. In case of a difference of opinion, the decision of the Lieutenant Governor shall be final, which indicates that the final decision regarding all matters related to such officials is in the hands of the Central Government.
8.	Constitution of authorities, boards, commissions or statutory bodies	Establishment of any such authority/body and appointment of its officers/members will be done or nominated by the President.
9.	Disposal    of    matters    by    the Minister	While the ordinance provides discretion to the Ministers to issue standing orders for their departments, it also provides for restrictions on passing of these orders in certain cases. For such cases, where proposals or matters are required to be placed before LG, it shall be placed to the LG as well as the CM through the Chief Secretary.

REASONS GIVEN BY THE GOVERNMENT FOR BRINGING THIS ORDINANCE/BILL^[4]

• While the Capital of Delhi has been designated as a Union Territory with Legislature, the Constitution has retained certain powers and jurisdiction in the Parliament over matters concerned with Delhi vide Article 239AA.
• It has been stated that many important National and International institutions authorities like the President, Parliament, Supreme Court etc. as well as foreign dignitaries, high commissions are also having offices in Delhi, therefore, it is in the national interest that the highest possible standards of governance is maintained in Delhi. The decisions taken in the national capital affects the people of the nation directly as well as has the capability of putting the national image and credibility at the international stage.
• Since, it has been cited that the decisions taken in the national capital affect the nation of the people, it is the belief of the Central Government that some part of administrative authority in the administration of the NCT of Delhi is given to the democratically elected Central Government.
• The Central Government has further stated that in view of the special status as national capital, administrative schemes for the city have to be also followed by Parliamentary law to balance both local and national interests. The aspirations of the people should be reflected in the joint and collective responsibility of the Government of India and the Govt of NCT of Delhi.
• The Central Government has also ensured that the ordinance has been brought out under Article 239AA to ensure better and transparent administrative decisions for the capital. It states that officers of the Govt of NCT of Delhi, including the Ministers will have the equal right in matters connected with administration of the capital, however, this ordinance by way of its provisions intends to retain the active, meaningful and effective participation of the President of India.

CONSTITUTIONALITY OF THE ORDINANCE/BILL

• The Ordinance/Bill has evoked mixed views from Constitutional experts on whether it negates the Supreme Court’s judgement regarding control over beaureaucrats posted in New Delhi, and regarding its constitutionality, in general.
• On 17th July, 2023, Chief Justice of India D Y Chandrachud presided over a three-judge bench, which was hearing the matter. He stated that the matter will be referred to a 5-Judge Constitution Bench. This matter was believed to be complex, as the power conferred by Article 239 AA(7) was used for the first time, and services were brought out of the domain of the Delhi Legislative Assembly, thereby also acting as an amendment to the Constitution^[5].

DISCLAIMER: The opinions expressed herein are entirely those of the author(s). Swaniti makes every effort to use reliable and comprehensive information, but Swaniti does not represent that the contents of the report are accurate or complete. Swaniti is a non-profit, non-partisan group. This document has been prepared without regard to the objectives or opinions of those who may receive it. [1] Constitution of India. Part VIII. Article 239AA. [2] NDTV. (2023). Major Win For Delhi Government In Supreme Court In Tussle vs Centre. [3] Id. [4] The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, No.1 of 2023, Extraordinary Gazette Part-II-Section 1, Published on 19th May 2023. [5] Indian Express. (July, 2023). Supreme Court: May refer Delhi govt plea against Centre’s ordinance to 5-judge Bench.