On Friday (May 19), the Centre issued an ordinance [pdf], which effectively reinstates the power of the Lieutenant Governor (LG) over ‘administrative services’ in the Delhi government (also called GNCTD).
The ordinance, which has now been approved by the President of India, empowers the LG to oversee the posting, transfer, and disciplinary proceedings against officers of the Delhi government
This has been done through the constitution of a new ‘National Capital Civil Services Authority’, which will include the Delhi Chief Minister, Chief Secretary, and Home Secretary of the Delhi government.
Centre brings out ordinance notifying rules for GNCTD regarding ‘transfer posting, vigilance and other incidental matters’ pic.twitter.com/Mk2KgIOa0E
— ANI (@ANI) May 19, 2023
As per the ordinance, the ‘Authority’ headed by the Delhi CM will recommend the Lieutenant Governor on the transfer and posting of officers serving in the Delhi government. The recommendations will however need the approval of the LG.
The Lieutenant Governor has also been given the power to send the recommendations back to National Capital Civil Services Authority for reconsideration. “Provided also that in case of difference of opinion, the decision of the Lieutenant Governor shall be final,” the Ordinance made it clear.
“Notwithstanding anything contained in any judgment, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto,” it emphasised.
The Background of the Controversy
On May 11, 2023, a five-judge Constitution bench led by Chief Justice of India (CJI) DY Chandrachud pronounced the verdict in the Government of NCT of Delhi vs Union of India case [pdf].
The apex court ruled that the Delhi government has both executive and legislative power over ‘administrative services’ in the National Capital. However, It noted that GNTCD cannot exercise its powers in matters related to police, land and public order. At the same time, the apex court stated that the Lieutenant Governor is bound by the decisions of the Delhi government.
“Under Entry 41 List 2, the Lieutenant Governor shall be bound by the decisions of GNCTD on services as explained above. To clarify, any reference to Lieutenant Governor over Services excluding services relating to public order, Police and land in relevant rules shall mean Lieutenant Governor acting on behalf of NCTD,” the Supreme Court ruled.
CJI : If the officers feel they are insulated from the control of the government, it will dilute accountability and affect governance.#SupremeCourt #DelhiGovtvsLG
— Live Law (@LiveLawIndia) May 11, 2023
CJI DY Chandrachud even stated, “If a democratically elected government is not given the power to control the officers, the principle of triple chain of accountability will be redundant.”
He continued, “If the officers stop reporting to the Ministers or do not abide by their directions, the principle of collective responsibility is affected.” The CJI further added that if the officers felt they were insulated from the control of the government that would dilute accountability and affect governance.
Legal basis of the Ordinance by the Centre
It must be mentioned that the Union government can bring in an Ordinance (a law that can make legislative changes) when the Parliament is not in session and immediate action is required on a matter. However, it must be passed by the Parliament within 6 weeks (42 days) of the commencement of the next session or it will lapse.
While there is a hullabaloo over the ordinance issued by the Centre, reinstating the power of LG over ‘administrative issues’, it must be mentioned that such a provision was made in the Government of NCT of Delhi vs Union of India verdict of the Supreme court.
In Part C, Section 20 of the Judgment copy, it is clearly stated –
“The judgment of the majority, however, clarified that if Parliament makes a law in relation to any subject in List II and List III, the executive power of GNCTD shall then be limited by the law enacted by Parliament.“
Again in Part I, Section 95 of the verdict, it has been made clear –
“…If Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law. Furthermore, under Section 49 of the GNCTD Act, the Lieutenant Governor and the Council of Ministers must comply with the particular directions issued by the President on specific occasions.“
Moreover, Article 239AA of the Indian Constitution provided an assembly to Delhi to address local aspirations and was not intended to give complete control of the Union Territory to the Delhi government (over the existing control of the Union Government).
