Got Questions On The Delhi Services Bill? Here Are The Answers You Are Looking For

The 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 Opposition 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? 

The bill establishes the National Capital Civil Service Authority.

This would be headed by the Chief Minister of Delhi, and would also include 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 misrepresentation.

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) further states that in a situation when a law in respect of the same subject has been passed by the legislative assembly and the Parliament, 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.

This 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 with the Parliament's law would be repugnant and be declared void.

Does the bill override the Supreme Court ruling of 11 May?

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