28 Nov

Delhi Services Act, 2023

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Content

• About the Act
• 2018 Supreme Court Judgment: Government of Delhi vs Lt. Governor
• Other Important Constitutional Principle highlighted in the judgment
• Government of National Capital Territory of Delhi (Amendment) Act, 2021
• The Government of National Capital Territory of Delhi (Amendment) Act, 2023

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Delhi Services Act, 2023 (Government of National Capital Territory of Delhi Act, 1991) with 2023 Amendment

About the Act

The GNCTD act was passed in 1991 to supplement the constitutional provisions relating to the assembly and the Council of Ministers in the national capital. It lays down framework for functioning of Delhi Assembly and the Delhi Government.

It outlines the powers of assembly, the discretionary powers enjoyed by the L-G, and the duties of the Chief Minister with respect to the need to furnish information to the L-G.

2018 Supreme Court Judgment: Government of Delhi vs Lt. Governor

• Background:
  • Turf war between LG and the CM of Delhi: Interpretation of Article 239AA(4) – If LG could go against the aid and advise of the council of Ministers, and whether LG is the real head or only the titular head of the Delhi Government.
• Supreme Court Verdict:

1. ‘Chief Minister’ is the executive head of the Delhi government, and not the L.G. LG has to act as per the aid and advice of council of ministers except in matters of land, police and public order and those which he refers to President for final decision.

• • LG can’t interfere in each and every decision of the Delhi government.

2. The LG shouldn’t act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. The LG can do so only as a last resort and shall be bound by the President’s advice.

• • The Difference of opinion between LG and the Council of Ministers should have a sound rationale and there should not be exposition of phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.

3. Council of Minister didn’t require LG’s concurrence to implement its decisions even though it had the responsibility to keep him apprised of its every decision.

4. The court also held that Delhi was not a ‘state’, and occupied a special status under the
constitution.

Other Important Constitutional Principle highlighted in the judgment

• Constitution has to be interpreted in such a manner so as to enhance its democratic spirit.
• Spirit of Constitutional morality (‘absolute and unqualified adherence to constitutional principles’) negates the concentration of power in the hands of few.
• Parliamentary form of government is based on principle of collective responsibility of the cabinet.
• The Union and the State governments must embrace a collaborative federal architecture by displaying harmonious co-existence and interdependence so as to avoid any possible constitutional discord.
  • Recognizing that the constitution envisages quasi-federalism ( a mixture of federal and unitary elements, leaning more towards later) the bench added that acceptance of “pragmatic federalism” was the need of the hour as its object was to come up with innovative solutions to problems that emerged in a federal set up.

Government of National Capital Territory of Delhi (Amendment) Act, 2021

• The statement of Object and reasons of the amendment says that the act seeks to give effect to the Supreme Court’s interpretation and that it “further defines” the responsibilities of the elected government and Lt Governor in line with the Constitutional Scheme.

Key changes:

• The expression “Government” referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor (LG).
  • Support: Clears ambiguities in the roles of various stakeholder
  • Criticism: It deals a body blow to the popularly elected government of Delhi.
• The Legislative Assembly shall not make any rule to enable itself or its committees to consider the matters of day-to-day administration of the Capital or conduct inquiries in relation to administrative decisions.
  • Criticism: It would virtually put to the rest proceedings of multiple committees that the state government has constituted to examine matters ranging from riots to environment.
• LG’s opinion shall be obtained before the government takes any executive action based on decision taken by the Cabinet or any individual minister.
  • Criticism: This provision would force the elected government to take LG’s “advice” before taking any action – It may be against the parliamentary principles and would add to unnecessary delays in the day today work of the government.

Verdict of the Constitutional bench of Supreme in May 2023:

• The Question before the court was whether the Delhi government (headed by the elected CM) or the LG (appointed by the President) would have control over services and civil servants in
  Delhi.
• The Court ruled that Delhi government will have control over services in Delhi. Such control, will not extend to subject of Police, Public Order, Land, over which central government will have exclusive say.
• It reaffirmed the 2018 verdict which said that LG didn’t have independent decision making powers and was bound to follow the aid and advice of the Council of Ministers.

After the Supreme Court’s verdict on control over services in Delhi, the GNCTD (Amendment) Ordinance, 2023 was promulgated which was replaced by a Parliamentary law in Aug 2023.

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

• Establishment of the National Capital Civil Services Authority (NCCSA): It consists of the Chief Minister (Chairperson), the Chief Secretary of Delhi and the Principle Home Secretary of Delhi. The central government will appoint both Home Secretary and Chief Secretary. The authority will make recommendations to the LG regarding transfers and postings of officials and disciplinary matters.
• The amendment expands the discretionary power of the LG to include powers to approve the recommendations of the authority, or return for reconsideration. In the case of a difference of opinion between the LG and the authority, the former’s decision will be final.
• Matters which needs to be submitted before LG for his opinion prior to issue of order has been expanded to include the relations of the Delhi Government with the Central Government. Additionally, the amendment expands the LG’s power to have sole discretionary power on these matters. If there is a difference between LG and CM, LG’s opinion will take precedence.
• It authorized department secretaries to bring to the notice of LG, the chief minister and the Chief Secretary any matter that may bring Delhi Government into controversy with the Central Government.

Concerns being raised:

• The amendment may be violating principles of Parliamentary Democracy: Conferring powers of transfers, postings, disciplinary action to the authority may break the triple chain of accountability that links Civil Servant, the legislature and the citizens.
  • Note: The Supreme Court explained the triple chain accountability principle in its 2023 judgment. It stated that Democratic government rests on a triple chain of accountability (i) Civil servants are accountable to ministers (ii) Ministers are accountable to the
    legislature and (iii) Legislatures are accountable to electorates/citizens.
  • Thus, a democratically elected government must be able to have control over and hold accountable public officers posted in services of its government.
  • It is also in violation of SC constitutional bench verdict in 2018 and 2023 where primacy has been given to council of minister.
• The amendment may violate the principle that LG should act on the aid and advice of the council of ministers as the discretionary powers of LG have been expanded.
  • Chief Minister gets weakened and can’t even convene a session of the legislative assembly himself for some important government business.
• Role of Council of Minister weakened, as the department secretaries are expected to bring certain matters direct to LG, CM and chief secretary. This may go against the collective responsibility of the cabinet, as the concerned ministers can’t provide his inputs.
• The act thus has the effect of disturbing this unique federal relationship of asymmetric federalism envisaged by the Constitution.

Therefore, Delhi government had challenged the ordinance in the Supreme Court and the Supreme Court has directed the formation of a 5 Judge Constitutional bench.

Way Forward:

• Cooperative Federalism
• Ending politicization: The control over government of Delhi has become a contest between two national parties.

 Conclusion:
The solution to all these problems lies in collaborative federal architecture by displaying harmonious co-existence and interdependence so as to avoid any possible constitutional discord: SC in 2018 judgment.