Delhi Ordinance Bill, 2023

Nayana Sharma

Abstract

Nearly 9 months away from the upcoming general election, a bill has been introduced in the parliament by the ruling National Democratic Alliance, targeting the sanctity of the incumbent Delhi government.

Arvind Kejriwal, the current chief minister of Delhi, has criticised the Bill as an unconstitutional piece of legislation that aims to give the actual elected Delhi government no more power than that of an advisory council.

A bill undergoing amendments is sure to have a backstory to it, which needs to be understood with the utmost clarity.

The May 11 Order

The issue of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 is not a brand-new one. The NDA government has attempted to enact this legislation since 2015 in an attempt to intrude some degree of control in Delhi, just as sore losers in an election would do. The NDA government was unwilling to accept their defeat in the national capital of Delhi.

However,  the only acceptable method the union government could have established Delhi as the centre’s territory “constitutionally” to completely ignore the Delhi state government; was by bestowing the Lieutenant Governor (LG) with absolute powers, hence, severely undermining the elected Delhi government.

The Home Ministry notification that served as the initial inspiration for the bill has been the bone of contention between the Centre and the Aam Aadmi Party (AAP) since 2015. The 2015 notification announced that the LG will have control over the services. It mandated that the LG only consult the Chief Minister “discretionarily.”

The National Capital Civil Service Authority (NCCSA), which was established by law as a “permanent” entity, was another attempt by the LG to usurp the Delhi government. Except for matters involving public order, police, and land, this body has jurisdiction over civil service employees in Delhi who work for the elected government.

The NCCSA hierarchy was set up so that Arvind Kejriwal, the chief minister, would serve as the committee’s chairperson, and the senior home secretary along with the chief secretary of Delhi would serve as member secretary and secretary, respectively. They will provide suggestions for the LG, who will be chosen by the Union Government.

The NCCSA has specific authority. That is, the NCCSA will advise the LG on issues pertaining to transfers and posting, vigilance, and disciplinary actions, in addition to making recommendations on subjects outside of its purview. To avoid any misunderstanding, the NCCSA’s judgement is not legally binding.

Since the committee will base its judgements on a majority vote, the members selected by the Union government will have the ability to defy the chief minister’s decision as well.

The LG will have the authority to accept the NCCSA’s recommendations or request a reassessment. If there is a disagreement of opinion, the LG’s decision will take precedence over the NCCSA, thus establishing the actual hierarchy to be followed.

Additionally, the bill gives the LG “sole discretion” over several issues. The section of this act known as Section 239AA that covered all of these restrictions ended up being the most problematic.

Delhi is not only a union territory, but it is also India’s National Capital, which the central government claimed as justification for its authoritarian and tyrannical stance.

The Union government only needed to expose the 69th amendment to the constitution which was a result of the S. Balakrishnan Committee, through which Delhi had been granted special status.

The fact that Delhi required special attention and that its governance was of the utmost importance thus requiring the centre to weigh in was hence imposed by the NDA.

On May 11, the Supreme Court issued a decision that favoured the Delhi administration.

The supreme court granted Delhi State government control over services in the national capital, except for matters related to public order, land and police, leaving them to LG’s discretion, on May 11.

According to the ruling of the Apex Court, the ordinance’s creation of the NCCSA avoids the focus placed on the ruling on the “triple chain of command” in the government of Delhi.

A five-judge constitutional bench led by Chief Justice D.Y. Chandrachud had defined the”triple chain of command”. It stated that the civil services are answerable to the elected government’s ministers, who are then answerable to the legislature, which is ultimately answerable to Delhi’s residents. The Supreme Court established this chain of command to guarantee democratic accountability.

On May 19, the central government, however, took action to overturn the aforementioned verdict issued on May 11 by the Supreme Court.  The ordinance published on May 19 included Section 3A. In essence, this clause gives the absolute authority over the demotion and employment of bureaucrats, to the centre instead of the usual state government presiding over these issues. As a result, the Supreme Court’s order was nullified, or, more accurately revoked, by the decree of May 19.

Why this Bill should not go ahead?

Since the last hearing, the bill has been a heated issue between the Modi-led BJP Government and the AAP.

On August 1, 2023, this bill was revisited as the home minister, Amit Shah announced the same in the lower house of the parliament with certain important corrections along with some equally reprehensible guidelines.

The main reason for this is that, although the bill did remove some unlawful guidelines, it also contained new guidelines that once again gave the LG excessive control over the AAP government. These new guidelines stated that the LG would appoint members to boards and commissions established by the Delhi government based on a panel of names recommended by the NCCSA. Since the Delhi chief minister will hold a role in the NCCSA, the AAP government is hence supposed to be satisfied with this minimal participation.

The law also limits the elected government’s ability to make decisions on crucial issues by granting the LG the final say on issues affecting Delhi’s peace and tranquilly, its relations with the Central government, any state governments, the Supreme Court of India, the High Court of Delhi, and other authorities.

The removal of the unlawful section 3A was one significant change in the reintroduced version of the bill. Yet, the new legislation still manages to give the federal government unjustified authority over subjects that are specific to Delhi. Other than the removal of this directive, the newly announced bill did not include two other provisions: one removed the need for NCCSA to produce a report on the national capital civil service authority and present it to the parliament and the Delhi assembly; the other removed the provision removing services from the elected government’s purview.

The AAP claims that the bill goes beyond the ordinance in that it not only strips the Delhi government of its ability to control services but also renders it utterly impotent, ushering in yet another dark day for India’s democracy.

The BJP has been charged by the AAP with enacting this law in an effort to seize control of Delhi because it has lost all state elections there over the past two decades.

Arvind Kejriwal, the chief minister of Delhi, has also recently met with the leaders of the opposition parties to rally opposition to the Bill before it is introduced in parliament.

The INDIA alliance members spoke out against the measure in the Lok Sabha, but the BJP gained support from the BJD. The National Democratic Alliance (NDA), which is run by the BJP, does not have the necessary majority on its own in the Upper house however, hence, the AAP is looking to the Rajya Sabha to stop the Bill.

But the AAP might be doomed there as well owing to the assistance that the Modi government is likely to receive from the BJD and the YSRCP in the Rajya Sabha.

Conclusion

The issue of whether these changes truly made the legislation constitutional is still open for debate. The Bill effectively transfers control of Delhi’s services to the national government. The Delhi government cannot carry out any plans in any sector under its purview if it lacks control over civil personnel. The triple chain of accountability, a key component of parliamentary democracy, is irretrievably broken in this case. It stands for everything that goes against the spirit of our democratic and more importantly, federal constitution.

Hence, the bill can be perused to attack the elected Delhi Government and should not be allowed to go ahead.

References

  1. How the Delhi Services Bill Empowers the LG, Makes Delhi Government ‘Powerless’


https://thewire.in/government/how-the-delhi-services-bill-empowers-the-lg-makes-delhi-government-powerless

2. In Effective Reversal of SC Order, Union Govt Takes Back Control of Services in Delhi


https://thewire.in/government/in-effective-reversal-of-sc-order-union-govt-takes-back-control-of-services-in-delhi

  1. Delhi Ordinance Row; Controversial Bill Undergoes Amendment

https://www.livemint.com/politics/delhi-ordinance-row-controversial-bill-undergoes-amendment-check-what-changes-11690779609340.html

  1. Delhi’s Ordinance Bill passed in Rajya Sabha

https://www.livemint.com/politics/news/delhi-ordinance-bill-passed-in-rajya-sabha-heres-what-happens-next-11691456979452.html

  1. In The  Supreme Court Of India Civil Original Jurisdiction

https://main.sci.gov.in/supremecourt/2023/25700/25700_2023_1_1_45250_Judgement_20-Jul-2023.pdf

  1. Centre Clears Bill To Replace Delhi Ordinance For Control Of Officers

https://www.ndtv.com/india-news/centre-clears-bill-to-replace-delhi-ordinance-to-create-authority-for-transfer-and-posting-of-officers-4239338

  1. Centre’s hold on Delhi administration tightens

https://timesofindia.indiatimes.com/city/delhi/centres-hold-on-delhi-administration-tightens/articleshow/102516328.cms?from=mdr\

About the Contributor

Aanchal Karnani, Research Intern at IMPRI and Third year student at Symbiosis School of Economics, Pune

Read more Policy Updates at IMPRI