Chief Justice of India (CJI) Dhananjaya Y Chandrachud took note of the proposals made by the Delhi government that the petition filed on June 30 would require to be revised since the services ordinance has now been replaced by the GNCTD (Amendment) Act, 2023.

Senior counsel Abhishek Manu Singhvi, assisted by advocate Shadan Farasat, mentioned the plea before the CJI. SolicitoGeneralal Tushar Mehta, portraying the Centre said they have no disapproval of the plea for the amendment.

At this, the CJI passed a brief order, allowing the Delhi government to amend its petition to encourage it to challenge the pertinent clauses in the new law.

The Delhi services ordinance, promulgated on May 19, was replaced by a bill that was passed by Parliament on August 8. Four days later, changes to the Government of National Capital Territory of Delhi (GNCTD) Act were codified into law, putting the control of the city’s administration in the hands of the Centre after the President accorded her assent to the law.

Delhi

Delhi Government has power bureaucrats

A week after a Supreme Court Constitution bench ruled that the Delhi government has power over bureaucrats assigned to departments under its purview, the Union government, on May 19, issued the ordinance restoring to itself the power over ‘services’ by way of making a raft of major amendments in the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. The ordinance also reinforced the position of the Lieutenant Governor, making him the final authority who could act in his “sole discretion” in agreeing on the matters associated with the transfer and posting of bureaucrats.

In a move perceived as nullifying the constitution bench judgements on May 11, the Centre introduced a whole new chapter in the GNCTD Act, Part IVA, to create a National Capital Civil Service Authority (NCCSA) and a public service commission for transfers and postings of the officers serving in the affairs of the Delhi government. Delhi, so far, did not have a service commission of its own.

All transfers and postings of officers, as per the new law have to be done by NCCSA, which is chaireChief Ministerister Arvind Kejriwal and has two senior Delhi government bureaucrats as members; the authority takes decisions by majority, but the final decision will rest with the lieutenant governor (L-G).

In its May 11 judgement, the five-judge bench led by CJI Chandrachud had held that “a constitutionally entrenched and democratically elected government needs to have control over its administration,”.

The ordinance was questioned before the top court by the Delhi government on June 30, complaining it authorises the Union government to take over the governance of the Capital while eroding not only the premise of democratic governance but also the regional will of Delhi’s electorate. The AAP government also appealed a stay on the ordinance, arguing that it was issued to negate the two Constitution bench decisions of May 11 and July 2018, both of which were in favour of the elected government.

On July 20, the legal challenge to the ordinance was referred to a Constitution bench of five judges. In the reference order, the apex court noted that the power of Parliament to enact a law granting the Centre executive power over services is not in contention. “However, this court while deciding the constitutional validity of the 2023 Ordinance must decide if the exercise of such a power is valid,” said the order.

The bill also proposed to change how tribunals’ heads are to be nominated in the national capital --- allocating some prerogatives to the lieutenant governor now, as opposed to the Ordinance’s approach of the final signatory being the President of India.

Appointments in all boards, commissions, and statutory bodies verified under Acts passed by Parliament will be done by the central government while the proposals for appointments in boards, commissions, and statutory bodies established by Acts passed by the Delhi assembly will have to be routed through the NCCSA.

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