Delhi Services Bill: Explained, pointwise

Introduction

Recently, the Parliament passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, (commonly called Delhi Services Bill) that gives the central government control over bureaucrats in the Delhi government. It amends the Government of National Capital Territory of Delhi Act, 1991.  The Bill repeals the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, and will apply retrospectively from the date of promulgation of the ordinance. 

Why was the Delhi Services Bill introduced? 

The question of power-sharing between the Delhi government and central government has been raised before the Supreme Court on several occasions. 

In May 2023, a five-judge Constitution Bench ruled that the Delhi government has legislative and executive powers over administrative services in the national capital.  

The question before the Court was whether the Delhi government (headed by the elected Chief Minister) or the Lieutenant Governor (appointed by the President) would have control over services and civil servants in Delhi.   

The Court ruled that the Delhi government will have control over services in Delhi. Such control will not extend to the subjects of police, public order, and land, over which the central government has exclusive powers.   

The 2023 judgement also reaffirmed a 2018 judgement where the Supreme Court had ruled that the LG did not have independent decision-making powers and was bound to follow the aid and advice of the Council of Ministers. 

After the Supreme Court’s judgment on control over services in Delhi, the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated by the Central Government. The Delhi Services Bill repeals the Ordinance. 

What are the key features of the Delhi Services Bill? 

National Capital Civil Services Authority:   The Bill establishes the National Capital Civil Services Authority to make recommendations to the Lieutenant Governor of Delhi (LG) on certain matters related to services.  These include: (i) transfers and postings, (ii) matters related to vigilance, (iii) disciplinary proceedings. 

The Authority will consist of the: (i) Chief Minister of Delhi as Chairperson, (ii) Principal Home Secretary of the Delhi government and (iii) Chief Secretary of the Delhi government.  The central government will appoint both the Principal Home Secretary and Chief Secretary.   All decisions of the Authority will be based on a majority vote of the members present and voting.  The quorum for a meeting is two people. 

Powers of the Lieutenant Governor: The Bill stipulates that in areas where LG is authorized to exercise discretion, the LG will make decisions based solely on his discretion. It expands the discretionary role of LG by giving him powers to approve the recommendations of the Authority or return them for reconsideration.  In the case of a difference of opinion between the LG and the Authority, the former’s decision will be final. 

Matters to be submitted to the LG: Certain matters must be submitted to the LG, through the Chief Minister and the Chief Secretary, for his opinion prior to the issue of any order.  These include proposals affecting: (i) the peace and tranquility of Delhi, (ii) relations between the Delhi government and the central government, Supreme Court, or other state governments, (iii) summoning, prorogation, and dissolution of the Legislative Assembly, and (iv) matters on which LG is to give an order in his sole discretion.   

Duties of Secretaries: Additionally, the Department Secretary concerned must bring certain matters to the notice of the LG, the Chief Minister, and the Chief Secretary.  These include matters which may bring the Delhi Government into controversy with the central or any state government, the Supreme Court, or High Court of Delhi. 

How is the Delhi Services Bill different from the Ordinance? 

The bill removes the Section 3A of the ordinance that held that the Delhi legislative assembly will not have control over services under Entry 41 of List II of the Seventh Schedule of the Constitution which includes the State public services and State Public Service Commission.  

The Bill states that the power to appoint authorities, boards, commissions, statutory bodies, or office bearers will be with the President for any law of Parliament, and with the LG for any law of Delhi legislature. The Ordinance in this regard had stated that the power to appoint authorities, boards, commissions, statutory bodies, or office bearers will lie with the President under any law. 

The bill also does away with the provision included in the Ordinance that required the Civil Services Authority to submit an annual report to the central government and Delhi government, which will be tabled in Parliament and the Delhi Legislative Assembly. 

While the ordinance stated that any matter of administrative importance which the President or the Delhi Chief Minister may consider necessary will be submitted to the LG prior to the issue of any order; the bill states that only matters of administrative importance which the chief minister may consider necessary will be submitted to the LG prior to the issue of any order. 

What are the concerns related to Delhi Services Bill? 

Contradicting the principles of parliamentary democracy: The decisions of the National Capital Civil Services Authority will be based on a majority, and therefore creates the possibility for the Union government appointed members to overrule the decisions of the chief minister. Further, the Bill grants LG the power to override the recommendations of the Authority. Therefore, the Bill effectively gives the central government powers over services in Delhi. This may violate the triple chain of accountability, which is an essential feature of parliamentary democracy.   

The Democratic government rests on a triple chain of accountability: (i) civil servants are accountable to ministers, (ii) ministers are accountable to legislatures, and (iii) legislatures are accountable to the electorate. A democratically elected government must be able to have control over and hold accountable public officers posted in the service of his government. By separating the first link of the triple chain of accountability, the Bill may be contradicting the principles of parliamentary democracy.   

The LG may not be bound to act on the aid and advice of the Council of Ministers: As per Article 239AA, the LG has to act on the aid and advice of the Council of Ministers, except when exercising his functions in his discretion. The provisions of the Bill may violate the principle of the LG acting on the aid and advice of the Council of Ministers on matters within the executive competence of the latter.  They also contradict the 2018 judgement of the Supreme Court which stated that the decision-making power lies with the elected government. 

For example, under the Government of National Capital Territory of Delhi (GNCTD) Act, 1991, the LG has the power to summon, prorogue, and dissolve the legislative assembly. However, he is bound to act on the aid and advice of the Council of Ministers. The Bill allows the LG to override the decision of the Council of Ministers and exercise sole discretionary powers on these matters. This implies that the Chief Minister may not be able to convene a session of the Assembly for any essential government business.   

Certain terms in the Bill are unclear: The Bill specifies that in certain matters, the LG will act in his sole discretion.  It is unclear how ‘sole discretion’ of the LG is different from ‘discretion’. Under the Bill, the concerned department secretary must bring certain matters to the notice of the LG, the Chief Minister, and the Chief Secretary.   These include matters which may bring the Delhi Government into controversy with the central or any state government, the Supreme Court, or High Court of Delhi.  It is not clear what matters would be considered controversial. 

Breaks the usual chain of command: The bill also allows department secretaries to take matters to LG, chief minister and chief secretary without consulting the minister concerned. This would break the usual chain of command as issues related to the ministry would have no input from the minister concerned.  This also may go against the principle of collective responsibility of the cabinet. 

Conclusion 

The administrative apparatus of the Delhi government is likely to get streamlined once the Delhi Services Bill, 2023, is implemented as it will bring clarity on the issue of control of services in the national capital.  

The Bill may be challenged in the Supreme Court. In July, the apex court referred the ordinance, which preceded the Delhi services bill, to a constitutional bench. It remains to be seen if the Bill clears the basic structure test. 

 Sources: Deccan Herald, The Wire, PRS