The ongoing Monsoon Session of the Parliament is seeing a slew of crucial legislations being discussed.
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 ('GNCTD') is one such legislation that was passed in the Lok Sabha on 3 August, despite a mass walkout by the members of the Opposition.
It was then passed in the Rajya Sabha on 7 August, with a margin of 131 votes to 102.
This highly contentious bill cements the long-drawn power tussle between the Aam Aadmi Party's (AAP) State Government in Delhi and the Bharatiya Janata Party's (BJP) Central Government and forebodes an overhaul of Delhi’s federal structure as well as existing statutory and judicial precepts.
The highly contentious GNCTD bill cements the long-drawn power tussle between the Aam Aadmi Party's (AAP) State Government in Delhi and the BJP’s Central Government.
Among other things, the bill seeks to transfer the control over appointments of officials from the State government to the Lieutenant Governor. Consequently, the day-to-day affairs of Delhi would no longer be under the elected government and instead be under a nominated head.
Even before the Ordinance met its fate, the introduction of the Bill emboldened its purpose. While the bill conspicuously omits section 3A, the other provisions perpetuate its object. It proposes the formation of the National Capital Civil Service Authority, to preside over the deputations of civil servants.
Finally, it ordains the Lieutenant Governor’s decision to prevail over any matters related to Delhi. It is not too far-fetched to say that Delhi’s democratic life force at the state level is in serious jeopardy.
Why the Hullabaloo Over Just Another Administrative Law?
To answer this, let’s look into the unique position that Delhi holds in the landscape of India as a Union of States. Delhi is a union territory and according to Article 239 of the Constitution, union territories are governed by the President through an appointed administrator, the Lieutenant Governor. However, through the 69th Amendment of the Constitution, Article 239AA was inserted which conferred a special status upon Delhi.
Accordingly, Delhi was to have an elected government with authority over all subjects enlisted in the State List and the Concurrent List while matters related to public order, police, and land were to remain under the Union Government’s purview. This was brought about in response to Delhi’s persistent demand for statehood based on the S Balakrishnan committee in 1991.
Among other things, the bill seeks to transfer the control over appointments of officials from the State government to the Lieutenant Governor. Consequently, the day-to-day affairs of Delhi would no longer be under the elected government and instead be under a nominated head.
Thus, the latest developments can potentially undo the over three-decade-long federal framework of Delhi’s governance and nullify the authority of the state government. What this also implies is that it can amend the Constitution which goes against the letters and spirit of Article 239AA(7)(b) and remains a question before the Constitution bench of the Supreme Court of India.
What Have the Courts Said?
On 11 May earlier this year, the Supreme Court upheld the state government’s authority over the governance of the state, emphasizing:
"These dual sets of government, elected by 'We the People' in two separate electoral processes, are a dual manifestation of the public will. The priorities of these two sets of governments which manifest in a federal system are not just bound to be different but are intended to be different."
Despite the unequivocal buttress of the federal governance in Delhi by the Apex court, the Central Government had promulgated an Ordinance a few days later whose provisions effectively undermined the effect of this judgment.
One of the key controversies was around section 3A which grants the Lieutenant Governor the authority to oversee appointments, deputations, and transfers related to public services and state public services. In other words, the infantry of public governance, ie, the civil servants would now be under the Lieutenant Governor.
This ordinance was challenged by the Delhi government before the Supreme Court. In this case, the court observed that the sub-clauses of a and b of Article 239 AA(7) posit an inherent conflict regarding whether the Ordinance has the effect of amending the Constitution beyond the scope of the concerned Article.
It also made an important observation regarding how the Ordinance invalidates the “triple chain of accountability” that is integral to the constitutional fabric of India. This chain of accountability devolves from the permanent executives to the elected government to the legislature and ultimately to the public. So, eliminating the legislature and an elected government from the equation ruptures the intent of the 69th Amendment.
Given that this is an important constitutional question, this matter is now pending before the Constitution Bench of the Apex Court.
What is the Opposition Opposing?
Even before the Ordinance met its fate, the introduction of the Bill emboldened its purpose. While the bill conspicuously omits section 3A, the other provisions perpetuate its object. It proposes the formation of the National Capital Civil Service Authority, to preside over the deputations of civil servants.
Now this Authority has a 2:1 representation of the Union government and the State government and going by the rule of majority makes this an extended arm of the Union government. Besides, it grants the President the authority to form all statutory commissions and tribunals in Delhi, a power which rested with the state government erstwhile.
Finally, it ordains the Lieutenant Governor’s decision to prevail over any matters related to Delhi. It is not too far-fetched to say that Delhi’s democratic life force at the state level is in serious jeopardy.
In the political arena, this comes as a serious blow to the Aam Aadmi Party, one of the keystones of the Opposition alliance, I.N.D.I.A.
Major Opposition players have been acridly opposed to the GNCTD bill and even walked out but given the whooping majority enjoyed by the ruling party, this clearly wasn’t enough to stop it in both houses of Parliament.
(Yashaswini Basu is a Bangalore based lawyer. She holds a law degree from SOAS, University of London. She tweets at @yashaswini_1010. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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