In lines with the order of Lieutenant Governor of Delhi, the Finance department has also issued a circular to senior officers to strictly follow the GNCTD Act and the Ordinance related to services matter, which was passed by the Centre.
Recently, Supreme Court (SC) had directed that the elected government be given powers to take decisions independently, as per its will, as per the principles of democracy.
The issue rose in 2015, when a Union Home Ministry notification said that the Lieutenant Governor of Delhi shall exercise control over “services”.
The Delhi government challenged this before the Delhi High Court, which in 2017 upheld the notification.
On appeal, the Supreme Court referred the issue to a larger constitution Bench.
In 2018, a five-judge Constitution Bench, in a unanimous verdict laid down the law that governs the relationship between Delhi and the Centre. The ruling was in favour of the Delhi government.
What was the specific bone of contention?
The limited issue for the consideration of this Constitution Bench only relates to the scope of legislative and executive powers of the Centre and NCTD with respect to the term ‘services’.
Simply put, the court had to decide if it was the Delhi government or the Union government that had legislative and executive control over the capital’s bureaucracy.
The court had to interpret clause (3)(a) of Article 239AA (Special provisions with respect to Delhi) of the Constitution.
Article 239AA says that, “Subject to the provisions of this Constitution, the legislative assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State list or in the Concurrent list in so far as any such matter is applicable to union territories except matters with respect
Laws governing Delhi’s Administration:
Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution.
The Government of National Capital Territory of Delhi (GNCTD) Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital.
For all practical purposes, the GNCTD Act outlines the powers of the Assembly, the discretionary powers enjoyed by the LG, and the duties of the Chief Minister with respect to the need to furnish information to the LG.
What is Centre’s argument?
The Centre’s argument was that in the 2018 ruling, the court did not analyse two crucial phrases in Article 239AA (3)(a).
First was “ insofar as any such matter is applicable to union territories” and the second was “subject to the provisions of this Constitution.”
The Centre argued that since no Union Territory has power over services, Delhi too could not exercise such power.
Essentially, Delhi could only legislate on issues that other Union Territories are explicitly allowed to legislate upon.
What does Constitution says?
Article 239AA specifically excludes land, police and public order from the purview of the legislative powers of the Delhi government.
The court acknowledged that these three issues can also have some overlap with “services”.
The legislative and executive power of Delhi over Entry 41 (services) shall not extend over to services related to public order, police and land.
The legislative and executive power over such services such as Indian administrative services, or joint card of services, which are relevant for the implementation of policies and vision of NCT of Delhi in terms of day to day administration of the region, shall live with Delhi.
Government of NCT of Delhi (Amendment) Bill, 2021:
Provisions of the Bill:
“Government" to mean "Lieutenant Governor (LG)": The expression 'Government' referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor (LG).
Widening of Discretionary Powers of LG: The Bill gives discretionary powers to the LG even in matters where the Legislative Assembly of Delhi is empowered to make laws.
Necessarily Granted an Opportunity to LG: It seeks to ensure that the LG is “necessarily granted an opportunity” to give her/his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is implemented.
Related to Administrative Decisions: The amendment also says that “Legislative Assembly shall not make any rule to enable itself to consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions”.