Highlights of the Bill
Key Issues and Analysis
PART A: HIGHLIGHTS OF THE Bill
Context
Union Territories (UTs) are directly governed by the President or an administrator appointed by the President.[1] However, Delhi and Puducherry are UTs with a legislature, and a council of ministers.[2] ,[3] The Delhi Legislative Assembly has the power to legislate over subjects in the State List and Concurrent List, except for police, public order and land.[4] The Delhi government has executive powers over the same subjects. Further, Parliament has the power to legislate over all matters in the State and Concurrent Lists related to Delhi. The Lieutenant Governor (LG) is designated as the administrator of Delhi, operating with the aid and advice of the council of ministers of Delhi.[5] The Government of National Capital Territory of Delhi (GNCTD) Act, 1991 lays down the framework for the functioning of the Delhi Assembly and the Delhi government. [6] It outlines the powers of the Assembly, the discretionary powers of the LG, and the Chief Minister’s duty to provide information to the LG.
The question of power-sharing between the Delhi government and central government has been raised before the Supreme Court on several occasions. [7] , [8] , [9] On May 11, 2023, the Supreme Court gave its verdict on the control of services between the central government and the Delhi government. [10] 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 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. 8 Please see Table 2 (on page 4) for more details.
After the Supreme Court’s judgment on control over services in Delhi, the GNCTD (Amendment) Ordinance, 2023 was promulgated on May 19, 2023. [11] The Ordinance has been challenged in the Supreme Court, which has started hearing the petition. [12] The GNCTD (Amendment) Bill, 2023 was introduced in Lok Sabha on August 1, 2023. The Bill repeals the Ordinance and will retrospectively apply from May 19, 2023 (See Table 1 on page 4 for changes made in the Bill).
Key Features
PART B: KEY ISSUES AND ANALYSIS
Delhi government not having control over services may violate the basic structure
The Bill establishes an Authority to make recommendations to the LG on certain matters. These include: (i) transfers and postings, (ii) matters related to vigilance, and (iii) disciplinary proceedings of officers in Delhi. The Authority has three members, two of whom (Chief Secretary and Principal Home Secretary) are appointees of the Central Government. These members can in effect outvote the Chief Minister of Delhi. Further, the Bill grants the LG the power to override the recommendations of the Authority. Therefore, the Bill effectively gives the central government powers over services in Delhi. If the Delhi government does not have control over civil servants, it cannot execute any programmes across any sector in its jurisdiction. This may violate the triple chain of accountability, which is an essential feature of parliamentary democracy.
The Supreme Court explained this principle in the recent 2023 judgement. 11 It stated that 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. 11 A democratically elected government must be able to have control over and hold accountable public officers posted in the service of his government. 11 By severing the first link of the triple chain of accountability, the Bill may be contradicting the principles of parliamentary democracy.
The 2023 judgement re-iterates the principle spelt out by the 2018 judgement that ministers bear the responsibility before the legislature for every action undertaken by public officials in his respective department. 8 However, under the Bill, a minister of Delhi will not be able to hold his public officials accountable for bureaucratic delays.
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. 5 , 8 The Transaction of Business Rules of the GNCTD, 1993 provides that certain matters must be submitted to the LG, through the Chief Minister and Chief Secretary, for his opinion prior to the issue of any order.[13] These matters include: (i) the peace and tranquillity of Delhi, (ii) relations of the Delhi government with any state government, the Supreme Court, and the High Court of Delhi, and (iii) summoning, proroguing, and dissolving of the Legislative Assembly. The Bill expands the mentioned matters to include the relations of the Delhi government with the central government. Additionally, it expands the powers of the LG’s opinion to have sole discretionary power on these matters. If there is a difference of opinion between the LG and the Chief Minister, the LG’s opinion will take precedence.
These provisions 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. 8
For example, under the 1991 Act, the LG has the power to summon, prorogue, and dissolve the legislative assembly. 6 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
Sole discretionary power of the LG
Under the Act, matters where the LG may act on his discretion are: (i) matters outside the legislative competence of the Delhi Legislative Assembly but which have been delegated to the LG, or (ii) matters where he is required by a law to act in his discretion or exercise any judicial or quasi-judicial functions. The Bill specifies that in these matters, the LG will act in his sole discretion. It is unclear how ‘sole discretion’ of the LG is different from ‘discretion’.
The criteria for certain matters brought to the notice of the LG may be overbroad
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.
Moreover, this provision enables department secretaries to bring certain matters directly to the LG, Chief Minister and Chief Secretary, without consulting the concerned minister. This would break the usual chain of command as issues related to the ministry would have no inputs from the concerned minister. This also may go against the principle of collective responsibility of the cabinet.
Table 1 : Comparison of key changed provisions between the 2023 Ordinance and the 2023 Bill
The GNCTD (Amendment) Ordinance, 2023
Changes in the 2023 Bill