Centre's ordinance on control of services in Delhi: All you need to know

The Delhi CM reached out to Opposition leaders to garner their support against the ordinance so that the Centre is unable to replace it through a bill in the Parliament.

A Constitution Bench headed by the Chief Justice of India (CJI) D Y Chandrachud on May 11 held that the government in Delhi can make laws and administer civil services in the state.

The court said that the role of the lieutenant governor (L-G) will now be limited to the bureaucrats in the capital in three areas — public order, police, and land.

The intention of the judgement was to strike a balance between the interests of the Centre in Delhi and the authority of the elected Delhi government to legislate and administer through civil service officers.

The issue

However, on May 19, the Centre turned the tables on the judgment. President Droupadi Murmu, promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to make a fresh claim of power over the services in Delhi. The aim of the ordinance is to “provide for a comprehensive scheme of administration of services” which “balances the local and domestic interests of the people of Delhi with the democratic will of the entire nation reflected through the President of India”.

 

The government used the ordinance to return to its original position which it had taken on May 21, 2015 through a Home Ministry notification.

The notification, which started a conflict between the Aam Aadmi Party (AAP) government and the Centre for the last eight years, gave the L-G power over the services. It stated that the L-G can consult the chief minister only at his “discretion”. The notification had excluded Entry 41 (services) of the State List from the scope of powers of the Delhi government.

Ever since the judgment, Arvind Kejriwal, the national convener of the AAP, has been reaching out to leaders of non-BJP parties to gain support against the ordinance. Kejriwal aims to stop the Centre's bid to replace it through a bill in the Parliament.

On May 19, the Centre had promulgated the ordinance to create an authority for the transfer and posting of Group-A officers in the national capital, which the AAP government had called a deception with the Supreme Court (SC) verdict on control of services.

The Amendment to the Government of National Capital Territory of Delhi Act, 1991 (GNCTD) has now created a “National Capital Civil Service Authority” (NCCSA), which will now “make recommendations to the L-G regarding matters concerning transfer posting, vigilance, and other incidental matters.”

The NCCSA will consist of the elected chief minister of Delhi, the chief secretary of Delhi, and the principal secretary, home of the GNCTD.

The ordinance has introduced a new "Part IV A" to the GNCTD Act, with 13 provisions under Section 45A to Section 45M, which is titled "Provisions relating to the maintenance of the democratic and administrative balance in the governance of the National Capital Territory of Delhi."

The statement of objects of the Ordinance says that the "Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 is proposed to provide for a comprehensive scheme of administration of services deployed in the functioning of NCTD and other allied issues, thereby balancing the local and domestic interests of the people staying in the NCTD with the democratic will of the entire nation reflected through the President of India.”

The Ordinance contains no provision regarding transfer posting and discipline of Group B and Group C officers. This indicates that the elected Delhi government will have control over these officers under the Services Rules as they existed prior to the Ordinance.

Controversy

Effectively, under the new ordinance, the Chief Secretary and Home Secretary could potentially take a decision regarding transfer/posting, vigilance, discipline, etc., and send the recommendation to the LG, without the Chief Minister even being present at the meeting.

The Centre's argument

In a 2018 judgement, CJI Chandrachud had said that “having regard to the history in background, it would be fundamentally inappropriate to assign to the NCT status similar to other union territories”.

The Centre’s argument was that in the 2018 ruling, the court did not analyse two crucial phrases in Article 239AA(3)(a).

First was “ insofar as any such matter is applicable to union territories” and the second was “subject to the provisions of this Constitution.” The Centre said that no union territory in India has power over services and thus, even Delhi cannot exercise such power. Essentially, Delhi could only legislate on issues that other union territories are explicitly allowed to legislate upon.

“The legislative power of Delhi will extend to an entry only when that entry is clearly and unequivocally applicable to union territories as a class. Consequently, the list II (state list) has to be read contextually and certain entries can be excluded from the domain of GNCTD,” the Centre argued.

Power to L-G

The ordinance gives power to the L-G to make final decisions in case there is a difference of opinion between the L-G and the Delhi government.

The ordinance has also modified Section 41 of the GNCTD Act, which defined the “discretionary powers of the L-G” by specifying that the subjects within the section would be “within the sole discretion” of the L-G.

Support from political leaders

Tamil Nadu Chief Minister M K Stalin said that the Dravida Munnetra Kazhagam (DMK) would strongly oppose the bill replacing the Delhi Services Ordinance. He appealed to other leaders of the Opposition to support Kejriwal.

Showing his support towards the AAP, Samajwadi Party (SP) Chief Akhilesh Yadav said that the Centre's Ordinance is 'anti-democratic’.