The tussle over ‘services’ in Delhi

• The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was passed by the President on May 19th to make a fresh claim of power over the services in the capital.

Key Highlights:

• It forms a “permanent” National Capital Civil Service Authority (NCCSA) with the Chief Minister as chairperson, the Chief Secretary and Principal Home Secretary as Member and Member Secretary respectively.
• The NCCSA exercises authority over civil service officers working in all Delhi government departments except those in public order, police and land.
• The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.
• The Ordinance is based on the argument that the Supreme Court has acknowledged the superior authority of Parliament to make laws for the national capital.

What does the Ordinance say?

• 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.
• National Capital Civil Service Authority (NCCSA): 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 Delhi 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 Delhi government departments by majority of votes of the members present and voting.
• The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.
• This throws open a scenario in which bureaucrats in the NCCSA could possibly veto the Chief Minister.
• The Ordinance explains that the Chief Secretary would represent “the will of the officers of GNCTD” (Government of the National Capital Territory of Delhi).

The Top Court Say:

• The Supreme Court had envisaged a “neutral civil service” carrying out the day-to-day decisions of the Council of Ministers.
• The NCCSA attempts to bring civil service officers out of the administrative control of the elected Ministers, who embody the will of the people, and transform them into a power lobby.
• The NCCSA negates the intrinsic link between government accountability and the principle of collective responsibility highlighted in the judgment.
• The Ordinance, by creating the NCCSA, skirts the emphasis laid down in the judgment on the “triple chain of command” in the governance of Delhi.
• The court had held that the civil services were accountable to the Ministers of the elected government, under whom they function.
• The Ministers were in turn accountable to the legislature and the legislature ultimately to the people of Delhi.
• The chain of command was forged by the Supreme Court to ensure democratic accountability.
• The Ordinance also does not heed the President’s own Transaction of Business Rules of the Government of National Capital Territory of Delhi, 1993.
• Balakrishnan Committee: The court had also dismissed the K. Balakrishnan Committee’s specific recommendation that the “services” should not be included within the legislative and executive ambit of the NCTD.
  • The court held that the committee report was not relevant as it preceded the insertion of Article 239AA - the provision that deals with the governance structure of Delhi, in the 69th Constitution Amendment, 1991.

Does the Ordinance go against the Supreme Court judgment?

• 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 centre, and the NCTD at the regional level.
• 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.

What does 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.
• 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.
• The Lieutenant Governor could not refer every matter to the President”.

Way ahead:

• An Ordinance is not beyond judicial review of the apex court. If the 2023 Ordinance is challenged separately, the Union would have to prove the “extraordinary or emergent situation” which necessitated it to promulgate an Ordinance merely days after a Constitution Bench settled the law.
• A Constitution Bench in DC Wadhwa versus State of Bihar had held that the power of the Executive to promulgate an Ordinance should not be “perverted to serve political ends”.