Source- The post is based on the article “The tussle over ‘services’ in Delhi” published in “The Hindu” on 23rd May 2023.
Syllabus: GS2- Issues and Challenges Pertaining to the Federal Structure
News– Recently, a Constitution Bench headed by the Chief Justice of India D.Y. Chandrachud held that the Delhi government can make laws and administer civil services in the national capital.
In response, The President promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to make a fresh claim of power over the services in the capital.
What are the legal constitutional issues with the ordinance?
The Supreme Court had envisaged a “neutral civil service” for carrying out the day-to-day decisions of the Council of Ministers. The NCCSA attempts to bring civil service officers out of the administrative control of the elected Ministers.
The NCCSA negates the intrinsic link between government accountability and the principle of collective responsibility highlighted in the judgement.
The Ordinance, by creating the NCCSA, skirts the emphasis laid down in the judgement on the “triple chain of command” in the governance of Delhi.
The court had held that the civil services were accountable to the Ministers of the elected government, under whom they function. The Ministers were in turn accountable to the legislature, and the legislature ultimately to the people of Delhi.
The Ordinance also does not heed the President’s own Transaction of Business Rules of the Government of National Capital Territory of Delhi, 1993.
As per Rules, on matters which fall within the ambit of the executive functions of the Government of National Capital Territory of Delhi, decision-making is by the government comprising the Council of Ministers with the Chief Minister at its head.
Does the Ordinance go against the Supreme Court judgement?
The Ordinance is based on the argument that the Supreme Court has itself acknowledged the superior authority of Parliament to make laws for the national capital.
A review petition filed by the Centre in the Supreme Court claimed that Delhi is not a “full-fledged State” but only a Union Territory. The Parliament is Delhi’s true legislature. However, the May 11 judgement addresses this contention. It acknowledges that though Delhi is not a full-fledged State, its Legislative Assembly has power to legislate upon the subjects in the State List and Concurrent List.
The judgement says that the Delhi assembly has power to legislate upon subjects to give effect to the aspirations of the people of NCTD. It has a democratically elected government which is accountable to the people of the NCTD.
As per SC, Under Article 239AA(3), NCTD was given legislative power which is similar to States. The Constitution created an “asymmetric federal model” with the Union of India at the centre, and the NCTD at the regional level.
The May 11 judgement had also referred to how the majority in a 2018 Constitution Bench judgement had held that the concept of federalism is applicable to NCTD.
The court had held that the executive power of the Delhi government was “coextensive” with its legislative power. The executive arm of the government covers all the subjects, including services, except public order, police and land.
For further reading- Delhi Ordinance