Does The Delhi Services Bill Fall Within The Constitutional Purview Of The Parliament?

The alleged ‘controversial’ Government of National Capital Territory of Delhi (Amendment) Bill, 2023 (GNCTD Amendment Bill) was passed by the Rajya Sabha yesterday (7 August), after receiving approval of the Lok Sabha on 3 August.

The public outrage regarding the bill is that the Central Government vests with itself the control over ‘services’.

This essentially means that the Central Government will now have the powers to decide transfer and posting of civil servants of the Delhi Government. 

This piece aims to address popular perceptions regarding the Bill and establish a comprehensive picture of what the GNCTD Amendment Bill entails and whether the same is contrary to the Supreme Court’s ruling. 

What does the GNCTD Amendment Bill establish? 

In order to understand whether the GNCTD Amendment Bill was within the constitutional mandate of the Parliament, one needs to be first understand the GNCTD Amendment Bill, and whether the Parliament has really brought ‘services’ within its control. 

The Statement of Object and Reasons of the GNCTD Amendment Bill states that Article 239AA balances the participation of the Union Government in affairs relating to the administration of Delhi as various national and international institutions including authorities like the President, the Parliament, the Supreme Court, various foreign diplomatic institutions are located in Delhi.

Therefore in national interests ‘highest possible standards’ are required to be maintained in the administration of the National Capital Territory of Delhi. 

The object and reasons of the Bill categorically states that, any decision undertaken in respect of the NCT of Delhi, not only impacts the residents of Delhi, but the entire country and it will have potential impact on the national reputation and prestige in the global spectrum and hence, the entire nation is interested in the governance of NCT of Delhi.

The government reasons that there is a need to protect national interests without compromising the aspirations of the residents. 

More importantly, the object states that in absence of a Parliamentary legislation relating to ‘services’ in respect of NCT of Delhi, the Supreme Court considered a reference to ‘services’ in the 11 May Judgement.

However, in view of special status of NCT of Delhi, a scheme of administration is required to be formulated in local and national interests for reflecting the aspiration of the people through joint responsibility of the Government of India and NCT of Delhi. 

The bill establishes National Capital Civil Service Authority, which would be headed by the Chief Minister of Delhi, and comprising of the Chief Secretary of NCT of Delhi and Principal Secretary Home of NCT of Delhi.

The said authority would make recommendations to the Lieutenant Governor in matters concerning ‘transfer positing, vigilance and other matters’ of officers associated with the NCT of Delhi.

Therefore, claiming that ‘services’ has been brought within the exclusive domain of the Central Government, would be clear misrepresentation.

The powers regarding transfer and posting has been vested with the National Capital Civil Service Authority which will be presided by the Chief Minister of Delhi, and two officers of the Delhi Government. The authority would make recommendations to the Lieutenant Governor.

What does Article 239AA of the Constitution state?

As per Article 239AA (3)(a) of the Constitution, the elected legislature has been empowered to make laws for the matters listed under List II (State List) and List III (Concurrent List), except for matters relating to entries 1 (public order); 2 (police); and 18 (land).

However, sub-clause 3(b), gives an overriding power to the parliament, and states – ‘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’. This effectively means that the parliament has powers over and above the legislative powers of the Delhi Government as under clause (3)(a).

Complimenting sub-clause (3)(b), (3)(c) in furtherance states that in a situation when a law in respect of the same subject has been passed by the legislative assembly and the Parliament, then the law made by the legislative assembly of Delhi would be void to the extent of inconsistency with the Parliamentary law.

The law made by the Parliament would prevail in case of any inconsistency.

Furthermore, as provided under Article 239AA (7), the Parliament is empowered to enact laws for supplementing any incidental or consequential matters as contained under different clauses of Article 239AA.

The aforesaid discussion quite categorically establishes that a law made by the Parliament would have an overriding effect and any law passed by the legislative assembly of Delhi which is inconsistent would be repugnant and be declared void.

Whether the bill overrides the Supreme Court ruling?

The Supreme Court in its 11 May verdict despite ruling that power over ‘services’ would be exercised by the Delhi Government, recognizes the overriding powers of the Parliament when at loggerheads with any laws passed by the legislative assembly of Delhi. 

The Supreme Court in clear terms stated that the Parliament has overriding legislative powers in relation to the NCT of Delhi. It stated that Article 239AA(3) and (7) confers expanded legislative competence upon the Parliament.

The court reasoned that the since Delhi is also the capital of the country, it is necessary to have special provisions for Delhi, and the same is in larger national interests.

It was stated that if the Parliament makes a law in relation to any subject listed in List II (state list) and List III (concurrent list), the executive power of the Delhi Government would be restricted by the law enacted by the Parliament. 

The whole scheme of Article 239AA conferring special status to Union Territory of Delhi and the Supreme Court’s ruling explicitly recognizing the overriding powers of the Parliament, makes it clear that the Parliament is constitutionally empowered to enact the GNCTD Amendment Bill.

Lastly, even if it is considered that the bill violates the Supreme Court’s ruling, it is the established law of the Supreme Court that the Parliament cannot negate the decision of the court, without changing the ‘basis of that decision’.

However, as clearly provided in the statement of object and reasons of the GNCTD Amendment Bill, the move has been undertaken after giving due regard to the special status of NCT of Delhi and thereby balancing both national and local interest through joint and collective responsibility of the Central Government and Government of Delhi.

Moreover, as the power of the Parliament flows from Article 239AA of the Constitution itself, the Supreme Court would have very limited power of judicial review.