Debriefed: Government of National Capital Territory of Delhi (Amendment) Bill, 2023

With the passing of the Government of National Capital Territory of Delhi (Amendment) Bill, 2023 in the Lok Sabha on Thursday, the Central government is set to have primacy over appointments, transfers and postings of officers in the national capital..Essentially, the proposed law will reverse the effect of the Supreme Court verdict that had given the Delhi government power over administrative services in Delhi..How the Centre has interpreted the Supreme Court verdict.In the Lok Sabha, Union Home Minister Amit Shah said that the Indian Constitution empowered Parliament to enact laws for the NCT of Delhi. He pointed out that the Supreme Court had affirmed the same in paras 6, 95, 163(f) of its judgment that had restored the services to the Delhi government. The relevant paras in the Supreme Court verdict refer to the difference of opinion of the judges of a Division Bench in their split verdicts on the interpretation of Article 239AA, which deals with special provisions pertaining to Delhi. The judges had differed on whether “services” were excluded in view of Article 239AA(3)(a) from the legislative and executive domain of the Government of National Capital Territory of Delhi (GNCTD)..Additionally, in another para relied upon by the Home Minister, the Supreme Court had observed that if Parliament enacts a law granting executive power over any subject which is within the domain of NCT Delhi, the executive power of the Lieutenant Governor shall be modified to that extent, as provided in that law. “Furthermore, under Section 49 of the GNCTD Act, the Lieutenant Governor and the Council of Ministers must comply with the particular directions issued by the President on specific occasions,” the para in the apex court verdict stated..Following the verdict, the President of India on May 19 had passed an ordinance to give overriding powers to the Lieutenant Governor (LG) of Delhi - a Central government nominee - over transfer, posting and disciplinary proceedings against civil servants.Even as the Ordinance was challenged before the apex court, the Central government has replaced it with the Bill.So what changes does the Bill bring in?.What does the Bill say?.Upon enforcement, the Central government will be the rule-making authority as per Section 45C of the Bill. The provision gives power to the Central government to appoint officers belonging to all India services under the All India Services Act, 1951, except the Indian Police Service and officers belonging to Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS).The Central government can then frame rules related to the affairs of the GNCTD over: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; Powers, duties and functions of officers and other employees appointed or posted; Qualifications of candidates for appointment to the posts and the manner of selection for the appointments; Transfer or posting of officers and other employees.Further, it can penalise, suspend and hold departmental inquiries and regulate appointments and conditions of service of public officials. .The Bill provides for the formation of a National Capital Civil Service Authority. The Delhi Chief Minister shall be the ex-officio Chairperson whereas the Chief Secretary will be an ex-officio member of this body. The Principal Home Secretary of the Delhi government will be the ex-officio Member Secretary of the Authority.All matters before the Authority will be decided by voting of the members.“All recommendations of the authority shall be authenticated by the member secretary,” states sub-clause 4 of Section 45E. The nature and categories of officers and other employees meant to assist the Authority in discharging its functions will be determined by the Central government in consultation with the Authority..According to Section 45H(1), the Authority shall have the responsibility to recommend the transfers and postings of all Group ‘A’ (IAS) officers and officers of Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Services (DANICS) serving in the Delhi government.The Authority can also recommend to the Lieutenant Governor (LG) matters of vigilance or otherwise for disciplinary proceedings against public servants working in the Delhi government. The LG may then pass appropriate orders. Besides, policy decisions will be undertaken by the LG on the recommendations of the Authority..Powers of ministers under the Bill.As per the provisions of this Bill, any minister can issue standing orders for disposal of matters in their respective departments. However, the standing orders cannot be issued in contravention of constitutional provisions or provisions mentioned in the proposed law. The minister will have to send the copies of the directions and standing orders to the LG and the Chief Minister. According to Section 45D(b), irrespective of the existing appointments of any authority or board or members by the Legislative Assembly of GNCTD in force, the Authority shall recommend a panel of suitable persons for constitution or appointment or nomination by the LG as per Section 45H, which deals powers and functions of the authority..How is the Bill different from the Delhi Services Ordinance?.Section 45D of the Bill deals with the power to appoint authorities, boards, commissions and statutory bodies. While in the Ordinance, all such powers lay with the President, the Bill has added a sub-clause (b) to the provision to allow the Authority (headed by the Chief Minister) to “recommend a panel of suitable persons for constitution or appointment or nomination by the Lieutenant Governor.”Therefore, the power of the Delhi government in this arena has been limited to only making recommendations. .What is the Centre's justification for bringing in the Bill?.The need to bring in the Bill has been attributed to the city’s institutions and establishments. The justification to table the Bill hinges on the "Delhi being the capital of India is administered by the President of India directly". "Article 239AA of the Constitution provides for special provisions with respect to Union territory of Delhi. The said article provides for various functional and administrative networked issues balancing the participation of the Union Government in the affairs relating to the administration of Delhi in general, and particular, under the provisions contained in sub-clause (b) of clause (3) and clause (7) of the said article,” reads the Statement of Objects and Reasons attached with the Bill. .It underlines the presence of several important national and international institutions and authorities such as the President, Parliament, the Supreme Court of India and various other constitutional functionaries, foreign diplomatic missions, international agencies in Delhi. “In the national interest of the country, highest possible standards are required to be maintained in the administration and governance of the National Capital Territory of Delhi. Any decision taken in respect of Delhi not only affects the residents of Delhi but also affects entire country and shall have the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum and therefore, the entire nation is vitally interested in the governance of the National Capital Territory of Delhi,” it states..[Read Bill]