Background
Recently, on the 19th of May, 2023, the President promulgated an ordinance, “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023“, by virtue of which the Lieutenant Governor has been vested again with the power to take decisions in relation to the “services”.
The result of the same was that the
Delhi Government was divested of its powers, and the Lieutenant Government [who
is a representative of the Centre] has been given an ultimate say in making
decisions regarding the posting and the transfer of the officials.
Background of the Constitutional Position of Delhi
Article 239AA of the Constitution of India provides that the government of Delhi has the power to make laws of the entries in the State List except public order, land, and police. However, the Central Government has been given an overriding power by virtue of Article 239AA(3)(b) even in matters of the State List. Thus, in case of any conflict, the law of the Parliament would prevail over that of the State.
The Supreme Court verdict
A five-judge bench of the Supreme Court [consisting of Justice DY, Chandrachud, Justice MR Shah, Justice Hima Kohli, Justice Krishna Murari, and Justice Pamidighantam Sri Narasimha] unanimously gave a decision on the 11th of May, 2023 in Government of NCT Delhi v. Union of India 2023 SCC Online SC 606.
The matter between the Supreme Court
was in relation to a notification dated 21/05/2015. The notification provided
that the Lieutenant Governor may take the views of the Chief Minister in
matters relating to “services” to the extent of the matters which are
delegated to him by the President. Entry 41, State List of the Seventh
Schedule, deals with the entry “State Public Services; State Public
Service Commission”. However, the Entry was excluded from the State List,
citing the reason that the same was done since the State of Delhi did not have
its own Public Service Commission.
This was challenged by various
petitions in the High Court of Delhi. The High Court of Delhi was of the view
that the notification was valid and upheld the same. When the appeal was made,
a two-judge bench of the Delhi High Court opined that the matter involved a
substantial question of law as to the interpretation of the Article 239AA of
the Constitution, and hence the case was referred to a Constitution Bench.
The Supreme Court held that the
Central Government has power only in relation to public order, land and police
in Delhi and, thus, the power to control ‘services’ vested with the Delhi
government. If the Government of Delhi is deprived of the power in relation to
‘services’, it would undermine its power.
Citing the case of State
of Haryana v. Chanan Mal, the Supreme Court held that the Government of
Delhi has the power to control services, except the power to control services
related to police, land and public order.
Effect of the Ordinance
The
Ordinance is passed in negation of the Supreme Court decision mentioned above.
The objective of the ordinance is to make a balance between the will of the
nation & the interest and will of the people of Delhi. It also reflects the
fact that the whole nation is interested in the governance of the national
capital region
The
ordinance adds a new chapter IVA titled “Provisions relating to
the maintenance of the democratic and administrative balance in the Governance
of National Capital Territory Of Delhi” to “The Government of National Capital Territory of Delhi Act,
1991.”
The
ordinance has sought to create a new authority, i.e. “National Capital
Civil Service Authority”. This authority would make recommendations
regarding the transfer, posting etc., of civil servants to the Lieutenant
Governor. The ordinance provides that
the authority would help in balancing the interest of the nation and the
interest of the people of Delhi.
Section
45 E provides that the authority would consist of the following persons:
- the Chief Minister of Delhi, who shall be
the Ex-officio Chairperson,
- the Chief Secretary of Government Delhi,
who shall be a member ex officio
- the Principal Home Secretary, who shall be
the ex-officio Member Secretary to the Authority
The authority shall make the recommendations to the Lieutenant Governor. The Lieutenant Governor may return the recommendations after recording the reasons for doing so. In case of any dispute, the decision of the Lieutenant Governor shall be final. The result of the ordinance is that the power of the Government of Delhi to control the ‘services’ has been taken away.
Sonal Surana has completed her LLM [Specialisation in Business Laws] from National Law University Delhi and B.A.LLB (Hons) [Specialisation in International Law and Constitutional Law] from National Law University and Judicial Academy Assam
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
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Background
Recently, on the 19th of May, 2023, the President promulgated an ordinance, “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023“, by virtue of which the Lieutenant Governor has been vested again with the power to take decisions in relation to the “services”.
The result of the same was that the Delhi Government was divested of its powers, and the Lieutenant Government [who is a representative of the Centre] has been given an ultimate say in making decisions regarding the posting and the transfer of the officials.
Background of the Constitutional Position of Delhi
Article 239AA of the Constitution of India provides that the government of Delhi has the power to make laws of the entries in the State List except public order, land, and police. However, the Central Government has been given an overriding power by virtue of Article 239AA(3)(b) even in matters of the State List. Thus, in case of any conflict, the law of the Parliament would prevail over that of the State.
The Supreme Court verdict
A five-judge bench of the Supreme Court [consisting of Justice DY, Chandrachud, Justice MR Shah, Justice Hima Kohli, Justice Krishna Murari, and Justice Pamidighantam Sri Narasimha] unanimously gave a decision on the 11th of May, 2023 in Government of NCT Delhi v. Union of India 2023 SCC Online SC 606.
The matter between the Supreme Court was in relation to a notification dated 21/05/2015. The notification provided that the Lieutenant Governor may take the views of the Chief Minister in matters relating to “services” to the extent of the matters which are delegated to him by the President. Entry 41, State List of the Seventh Schedule, deals with the entry “State Public Services; State Public Service Commission”. However, the Entry was excluded from the State List, citing the reason that the same was done since the State of Delhi did not have its own Public Service Commission.
This was challenged by various petitions in the High Court of Delhi. The High Court of Delhi was of the view that the notification was valid and upheld the same. When the appeal was made, a two-judge bench of the Delhi High Court opined that the matter involved a substantial question of law as to the interpretation of the Article 239AA of the Constitution, and hence the case was referred to a Constitution Bench.
The Supreme Court held that the Central Government has power only in relation to public order, land and police in Delhi and, thus, the power to control ‘services’ vested with the Delhi government. If the Government of Delhi is deprived of the power in relation to ‘services’, it would undermine its power.
Citing the case of State of Haryana v. Chanan Mal, the Supreme Court held that the Government of Delhi has the power to control services, except the power to control services related to police, land and public order.
Effect of the Ordinance
The Ordinance is passed in negation of the Supreme Court decision mentioned above. The objective of the ordinance is to make a balance between the will of the nation & the interest and will of the people of Delhi. It also reflects the fact that the whole nation is interested in the governance of the national capital region
The ordinance adds a new chapter IVA titled “Provisions relating to the maintenance of the democratic and administrative balance in the Governance of National Capital Territory Of Delhi” to “The Government of National Capital Territory of Delhi Act, 1991.”
The ordinance has sought to create a new authority, i.e. “National Capital Civil Service Authority”. This authority would make recommendations regarding the transfer, posting etc., of civil servants to the Lieutenant Governor. The ordinance provides that the authority would help in balancing the interest of the nation and the interest of the people of Delhi.
Section 45 E provides that the authority would consist of the following persons:
The authority shall make the recommendations to the Lieutenant Governor. The Lieutenant Governor may return the recommendations after recording the reasons for doing so. In case of any dispute, the decision of the Lieutenant Governor shall be final. The result of the ordinance is that the power of the Government of Delhi to control the ‘services’ has been taken away.
Sonal Surana has completed her LLM [Specialisation in Business Laws] from National Law University Delhi and B.A.LLB (Hons) [Specialisation in International Law and Constitutional Law] from National Law University and Judicial Academy Assam
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.
For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel
Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal
Readers may submit his/her blog for publication. Click Here to submit your Manuscript.
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Related
Government of National Capital Territory of Delhi (Amendment) Act, 2021
“Delhi as the National Capital belongs to the nation as a whole.” Balakrishnan Committee Report 1987 The Government of National Capital Territory of Delhi (Amendment) Act, 2021 was enacted by. read more…
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