Centre makes edits to Delhi “services” Ordinance before introducing it in the Lok Sabha

The Bill, expected to be introduced in the Lok Sabha tomorrow, removes the presidential Ordinance's clause taking away the Delhi legislative assembly's power to make laws on "services". It also removes the reference to clause 7 of Article 239AA, which empowers the Parliament to give effect to or supplement the provisions of the Article, which is currently under the scrutiny of a Constitution Bench.

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THE Union government has made several changes to the Bill that will replace the Ordinance on "services" within the administration of the National Territory of Delhi (GNCTD).

The changes are possibly an effort to escape judicial review once the Bill passes through the Parliament and receives presidential assent to become an Act.

The National Capital Territory of Delhi (Amendment) Bill, 2023 is scheduled to be introduced in the Lok Sabha tomorrow.

Delhi's power to make laws on "services" restored

The Bill removes the provision of the Ordinance taking away the Delhi legislative assembly's power to make laws with respect to "services".

The Ordinance specifies that the Delhi legislative assembly's power to make laws shall not extend to Entry 41 (state public services; state Public Service Commission) of the State List of the Seventh Schedule of the Constitution, or any matter connected therewith or incidental thereto.

This Rule shall apply "notwithstanding anything contained in any judgement, Order or decree of any court," the Ordinance states.

In the judgment delivered on May 11, the Supreme Court had held that the Delhi legislative assembly's power to make laws extends to all subjects in the State List of the Seventh Schedule of the Constitution, except public order, police and land— subjects expressly excluded from its jurisdiction by Article 239AA of the Constitution, thus granting power to Delhi to make laws on Entry 41.

The Ordinance was introduced just eight days after the judgment.

Senior advocate Harish Salve, representing the lieutenant governor, had stated on July 20 that Section 3A of the Ordinance "may not survive in the version tabled in the Parliament", in a hearing wherein the GNCTD's plea seeking stay on the Ordinance was being heard.

The GNCTD, in its affidavit, had submitted that Section 3A, in effect, amends Article 239AA, the Constitutional provision defining the Delhi legislative assembly's powers.

Since the Supreme Court has previously held that the executive power of GNCTD is co-extensive with its legislative power— the executive power of the GNCTD shall extend to all matters with respect to which it has the power to legislate. 

The implication of Section 3A is that GNCTD would neither have legislative power nor executive power over the "services".

Even with the restoration of Delhi legislative assembly's power to make laws regarding "services", the GNCTD will not enjoy complete control over appointments, transfers and postings of Delhi's civil servants.

The Bill retains the Ordinance's provision creating a National Capital Service Authority (NCSA) comprising the chief minister, the chief secretary and the principal home secretary of the GNCTD for the appointment of certain high ranking officers.

Under the procedure established by the Ordinance and the Bill, the NCSA can only give recommendations to the lieutenant governor, who will hold the final say on appointments.

Clause 7

The preamble to the Ordinance states that the Ordinance has been enacted under clauses 3(b) and 7 of Article 239AA. In the version that will be tabled before the Parliament, the references to the said clauses has been changed to simply refer to the umbrella provision (Article 239AA).

Clause 3(b) of Article 239AA declares that the Parliament shall have the power to make laws with respect to any matter for a Union territory.

Clause 7, which is divided into two parts, grants the Parliament the power to add provisions giving effect to or supplementing various clauses of Article 239AA.

The second part of the provision declares that any such change shall not be considered to be an amendment of the Constitution "even if it contains any provision which amends or has the effect of amending the Constitution".

In creating a new caveat on its powers, Section 3A of the Ordinance goes beyond the clause 7 imprimatur of "giving effect to or supplementing the provisions" of Article 239AA, the GNCTD had submitted when it sought a stay on the Ordinance.

On July 20, the Supreme Court referred the question of "contours of the power of the Parliament to enact a law under Article 239-AA(7)" to a Constitution Bench.

The Constitution Bench, whose composition is yet to be announced, will also examine whether the Parliament can "abrogate the constitutional principles of governance" for the National Capital Territory of Delhi (NCTD) by making a law that takes away its control over "services".

In the reference Order, the court stated that "a primary reading" of clause 7(a) indicates that "the law shall not alter the existing constitutional structure envisaged for NCTD in Article 239AA."

However, "a prima facie reading" of clause 7(b) denotes that the law enacted under clause 7(a) could alter the existing constitutional structure of governance of the GNCTD, the court observed.

"This apparent conflict between the two clauses on the nature of law-making power vis-à-vis NCTD's constitutional structure of governance needs to be resolved by this court," the Bench said while passing the reference Order.

The court noted further that the interpretation of clause 7 has not been dealt with in either of the 2018 or the 2023 Constitution Bench judgments.

It is likely that the reference to clause 7 was removed from the Bill to avoid assertions by members of Parliament on the clause being sub judice.

Because the Supreme Court has not imposed a stay on clause 7, the Parliament continues to enjoy powers to add provisions giving effect or supplementing the provisions of Article 239AA.

Appointment process altered

In Section 45D, the Ordinance states that all authorities, boards, commissions and statutory bodies functioning in the NCTD shall be constituted, nominated or appointed by the President.

The Bill prescribes that for a body constituted under a law enacted by the Parliament, the President shall be the appointing authority.

Meanwhile, for a body constituted under a law enacted by the Delhi legislative assembly, the appointing authority shall be the lieutenant governor.