Centre passes ordinance to nullify SC decision favouring Delhi govt

What’s in today’s article?

• Why in news?
• Background of the Case: 
• What gave Rise to this Dispute? 
• The Issue of Control over Administrative Services
• Central & State Government’s Arguments on the issue of Control over Administrative Services
• News Summary: Centre passes ordinance to nullify SC decision favouring Delhi govt
• Key highlights of the ordinance

 

Why in news?

• The Union government brought an ordinance designating the Lieutenant Governor (L-G) as the administrator of Delhi who will have the final say on the postings and transfer of all bureaucrats serving the Delhi government.
• The ordinance seeks to amend the Government of National Capital Territory (NCT) of Delhi Act, 1991 and effectively negates the May 11 Supreme Court judgment.
  • The SC judgement had given the Delhi government the power to make laws and wield control over bureaucrats deputed to the Delhi government.

 

Background of the Case: 

• A five-judge Constitution Bench of the Supreme Court was hearing the dispute between the Delhi government and the Central government. 
• The dispute was over matters pertaining to control over the transfers and the overall functioning of administrative services in the National Capital Territory (NCT) of Delhi.
  • The administrative services include appointments and transfers, in the national capital.
• On May 11, 2023 a five-judge bench of the SC held that the Delhi Govt will have legislative and executive control over administrative services in the National Capital Territory of Delhi (NCTD) except with regard to public order, police and land.
  • The apex court also ruled that the decision on which IAS officer gets posted to the national capital — and for how long — will continue to be the Centre’s prerogative.
• Now, the Centre has brought an ordinance which nullifies the SC order.

 

What gave Rise to this Dispute? 

• Article 239 AA was inserted in the Constitution by the 69^th Constitutional Amendment Act, 1991.
  • Based on the recommendations of S Balakrishnan Committee, it gave special status to Delhi. 
• It says that the National Capital Territory (NCT) of Delhi will have an Administrator and a Legislative Assembly.
  • The Legislative Assembly “shall have power to make laws for the whole or any part of the NCT w.r.t. any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories”.
  • However, the legislative assembly of Delhi cannot legislate on the following three subjects – Police, Public Order, and Land.
• However, in the past few years, governance in the NCT has often been a subject of conflict between the Delhi government and the L-G.

 

The Issue of Control over Administrative Services:

• Union Home Ministry notification of 2015
  • In 2015, a Union Home Ministry notification said that the Lieutenant Governor of Delhi shall exercise control over “services”. 
  • The Delhi government challenged this before the Delhi High Court, which in 2017 upheld the notification.
  • Delhi Govt challenged this order and the matter was referred to a larger constitution Bench.
• 2018 Judgement
  • In 2018, a five-judge Constitution Bench, in a unanimous verdict, laid down the law that governs the relationship between Delhi and the Centre.
  • The ruling was in favour of the Delhi government.
• On the specific issue of services
  • While 2018 Judgement decided the larger questions, this specific issue was to be decided by a two-judge Bench.
  • In 2019, a two-judge bench of the SC delivered a split verdict on the aspect of who controls administrative services in Delhi.
  • The split verdict then went to a three-judge Bench and eventually a five-judge Constitution Bench, which delivered its verdict on May 11.

 

Central & State Government’s Arguments on the issue of Control over Administrative Services: 

• The Central Government has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers. 
• On the other hand, the Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
  • The Delhi government had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of basic structure of the Constitution.

 

News Summary: Centre passes ordinance to nullify SC decision favouring Delhi govt

• The President Promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023.

 

Key highlights of the ordinance

• Creation of National Capital Civil Service Authority (NCCSA)
  • The ordinance seeks to establish for the first time the National Capital Civil Service Authority (NCCSA).
  • NCCSA will be headed by the Chief Minister of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi being the other two members.
• Functions and working of NCCSA
  • The NCCSA will make recommendations to the LG regarding transfer posting, vigilance and other incidental matters.
  • All matters required to be decided by the NCCSA shall be decided by majority of votes of the members present and voting.
    • This means, that in effect, the decision of the elected chief minister of Delhi can be overruled by the two senior bureaucrats.
• Role of L-G
  • The ordinance stated that the L-G will pass orders to give effect to the recommendations passed by the NCCSA.
  • However, L-G can ask for the relevant material with regard to officers belonging to All India Services and DANICS serving the Delhi government.
• When Lieutenant Governor differs with the recommendation
  • In case the L-G differs with the recommendation made, he/she may return the recommendation to the Authority for reconsideration by the Authority.
    • For this, reasons will have to be recorded in writing.
  • However, as per the ordinance, the final decision will lie with the Lieutenant Governor of Delhi.

 

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Q1) What is National Capital Territory (NCT) of Delhi?

The National Capital Territory (NCT) of Delhi refers to the administrative unit of Delhi, the capital city of India. It is a unique entity within the Indian federal system. The NCT of Delhi is governed by the Government of National Capital Territory of Delhi (GNCTD), which has its own legislative assembly and executive council of ministers.

 

Q2) What is Article 239 AA  of Indian Constitution?

Article 239AA of the Indian Constitution provides a special provision for the administration and governance of the National Capital Territory of Delhi (NCT). It was inserted into the Constitution by the Constitution (Sixty-ninth Amendment) Act, 1991.

 

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Source: Centre reverses Supreme Court order, gives Delhi Lieutenant Governor final say on bureaucrats | Indian Express | Hindustan Times