DELHI GOVT VS CENTRAL ART 239AA
The Supreme Court said on Monday that it is “inclined” to send the Delhi government’s plea, challenging the constitutional validity of the Centre’s ordinance on control of services, to a five-judge Constitution Bench, saying it has legal aspects which were not “dealt with” by the two Constitution Benches which heard the matter earlier.
“We will issue notice. We are inclined to refer it to a Constitution Bench. The reason why we have to hear it in a combination of five is that for the first time they have used the power… conferred by Article 239 AA(7), and brought services out of the domain of the Delhi Legislative Assembly. They amend the Constitution by exercising the power under Article 239AA Article 239AA of the Constitution deals with special provisions with respect to Delhi.
ARTICLE239AA
Special provisions with respect to Delhi
(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor.
(2) (a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.
(c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to
Parliament.
(3) (a) 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 to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a)shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:
Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.
(b)Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.
(8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be.
The CJI said the ordinance makes the state list also a concurrent list. “Parliament has power to make law with respect to any item in List 2 (state list) and List 3 (concurrent list). Legislative Assembly can make law on List 2 except entries 1 (public order), 2 (police) and 18 (land). Parliament can make law on anything in List 2 including entries 1, 2 and 18. Now what you have done is, by this clause 3 of the ordinance, the state legislature cannot enact a law with respect to entry 41 (state public services; State Public Service Commission) at all,” he said.
Senior Advocate Harish Salve, appearing for the Lieutenant-Governor, said the question is about the competence of Parliament. “Could Parliament have enacted a legislation which would have resulted in a concurrent list becoming an exclusive list,” he said, adding, “even if it’s a concurrent list, once Parliament makes a law, the state is excluded. The effect of that is exclusionary in concurrent list also”.
On May 11, a five-judge Constitution Bench headed by Chief Justice D Y Chandrachud had held that the National Capital Territory administration is unlike other Union Territories and has been accorded a ‘sui generis’ (unique) status by the Constitution. It had asserted that an elected government needs to have control over bureaucrats, failing which the principle of collective responsibility will be adversely affected.
On May 19, the Centre promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to set up a National Capital Civil Service Authority for transfer and posting of Group-A officers in Delhi. The Chief Minister is one of the three members of the Authority, while the two others are bureaucrats. The decisions by the Authority are to be taken by a majority and, in the event of a dispute, the matter will be referred to the L-G whose decision will be final.
The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023-Know the key provisions
Highlights of the OrdinanceThe Ordinance amends the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. It removes services from the legislative competence of the Delhi legislative assembly.
It establishes the National Capital Civil Services Authority, which consists of the Chief Minister, Chief Secretary of Delhi, Principal Home Secretary of Delhi. The Authority will make recommendations to the Lieutenant Governor (LG) regarding transfers and postings of officials and disciplinary matters.
The Ordinance empowers the LG to exercise his sole discretion on several matters including those related to National Capital Civil Services Authority, and the summoning, prorogation and dissolution of the Delhi Legislative Assembly.
Key Issues and Analysis
The Ordinance excludes “Services” from the purview of the Delhi Assembly. The question is whether such a change can be made without a Constitutional Amendment under Article 368.
Taking “Services” outside the purview of the Legislative Assembly may break the triple chain of accountability that links the civil services, ministers, the legislature and citizens. This may violate the principle of parliamentary democracy, which is a part of the basic structure doctrine.
The LG has been granted sole discretion in several matters including when the Legislative Assembly will convene. This implies that the Chief Minister may be unable to convene a session needed for essential government business.
Key Features
Powers to legislate over services: The Ordinance specifies that the Delhi Legislative Assembly will not have the power to legislate on the subject of ‘services’, which comes under the State List. Services include matters related to appointments and transfers of employees of the Delhi government, and vigilance.
The central government will notify the conditions of service of persons appointed to services including their tenure, qualification, salaries, powers and functions, and suspension.
National Capital Civil Services Authority: The Ordinance establishes the National Capital Civil Services Authority to make recommendations to the Lieutenant Governor of Delhi (LG) on certain matters related to services. These include: (i) transfers and postings, (ii) matters related to vigilance, (iii) disciplinary proceedings, and (iv) prosecution sanctions of Group A of All India Services (except 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: Under the Act, matters where the LG may act on his discretion are: (i) matters outside the legislative competence of the Delhi Legislative Assembly but which have been delegated to the LG, or (ii) matters where he is required by a law to act in his discretion or exercise any judicial or quasi-judicial functions. The Ordinance specifies that in these matters, the LG will act in his sole discretion. It expands the discretionary role of the LG by giving him powers to approve the recommendations of the Authority, or return them for reconsideration. The LG’s decision will be final in the case of a difference of opinion between him and the Authority.
Disposal of matters by Ministers: A Minister of the Delhi government may issue standing orders concerning the disposal of matters brought to his attention. The order should be issued in consultation with the concerned Department Secretary. Certain matters must be submitted to the LG, through the Chief Minister, for their opinion prior to the issue of any order. These include proposals affecting: (i) the peace and tranquillity of Delhi, (ii) relations between the Delhi government and the central government, Supreme Court, or other state governments, (iii) summoning, prorogation, and dissolution of the Legislative Assembly, and (iv) matters on which LG is to give an order in his sole discretion.
Additionally, the concerned Department Secretary must bring certain matters to the notice of the LG, the Chief Minister, and the Chief Secretary. These include matters which may bring the Delhi Government into controversy with the central or any state government, the Supreme Court, or High Court of Delhi.
KEY ISSUES AND ANALYSIS
The Ordinance may be violating the constitution
the Ordinance removes services from the legislative competence of the Delhi legislative assembly, since the executive powers are in competence with legislative powers, the govt. Of delhi loses power on services
it creates a three-member Authority which will have the power to control transfers of officers in Delhi, where 2 of them, appointed by centre can outvote CM
Ordinance amends powers of Delhi Assembly, which are specified in the Constitution
It amends services, which is state list entry 41
Giving central government control over services in Delhi may violate the basic structure
The LG may not be bound to act on the aid and advice of the Council of Ministers
Certain terms in the Ordinance are unclear
Sole discretionary power of the LG
The criteria for certain matters brought to the notice of the LG may be overbroad
The criteria for certain matters brought to the notice of the LG may be overbroad
arguments by central govt
The National Capital Civil Service Authority would balance the interest of the nation with the interest of the Union Territory of Delhi in the administration of the capital as it recognises the democratic will of people reposed both in the Central Government as well as the GNCTD.
The Ordinance will give effect to the very intent and purpose behind the provisions of the Constitution and retain the active, meaningful and effective participation of the President of India (Union Government) in the national interest, in the matter of governance of its capital in the question of posting, transfer and other allied matters relating to the officers/employees employed in the functioning of the GNCTD.
why delhi is special
Several important National and international institutions and authorities such as the President, Parliament, the Supreme Court, etc. and various constitutional functionaries, etc., as well as all foreign diplomatic missions, international agencies, etc., are located in Delhi.
It is also a place to which high dignitaries from other nations pay official visits frequently (for example global leaders would be visiting the capital this year in view of India’s G-20 presidency) and it is in the national interest that the highest possible standards should be maintained in the administration and governance of the national capital.
239AB. PROVISION IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY.
If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied-
(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or
(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do,
the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.
Extent of Delhi’s powers now- 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. However, 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,” the court said.
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