Recently, Indian President Droupadi Murmu gave her assent to the Government of the National Capital Territory of Delhi (Amendment) Bill, 2023, and it became law. Popularly known as the Delhi Services Act, it empowers the center to make rules for Delhi government officers and employees, including appointments, transfers, and terms. The act comes in the wake of a judgment by the Supreme Court in May 2023, where it ruled that the Delhi government has full control over the administration of the national capital, except police, public order, and land.
The act is a matter of contention between the central government and the National Capital Territory (NCT) of Delhi, which has long demanded full statehood. The act expands the power of the lieutenant governor, an appointee of the central government, thus potentially impeding the functionality of the democratically elected government.
The central government argues that the bill was introduced in order to eradicate corruption in the state with respect to the appointment and transfer of civil servants. The Delhi government, meanwhile, argues that the bill is not in consonance with the democratic spirit of India and the principle of separation of powers. They assert that the bill gives the center excessive control over Delhi, which will in turn make it difficult for the Delhi government to function effectively.
The act creates tension between the center and the NCT. It has a provision for the establishment of the National Capital Civil Services Authority (NCCSA), a three-member body consisting of the chief minister, chief secretary of Delhi, and principal home secretary of Delhi, which will make recommendations to the lieutenant governor regarding matters concerning transfer, postings, vigilance, and other matters of Group “A” officers (Indian Administrative Service, IAS) and officers of DANICS (Delhi, Andaman, and Nicobar Islands Civil Service) serving in the Delhi government. The lieutenant governor has the sole discretion to either approve the recommendations, ask for reconsideration, or, in the case of a difference of opinion, nullify the recommendation.
The provisions of the act have been heavily criticized by the Delhi government and opposition parties, who argue that the act erodes the autonomy of the Delhi government by giving extensive powers to the lieutenant governor. The Delhi government will no longer have the power to make laws and regulations related to services in Delhi, thereby affecting their functionality. Moreover, by giving superseding powers to the presidentially appointed lieutenant governor, the chief minister, who is the democratically elected leader of Delhi, will have negligible say in the bureaucracy, which will undermine the authority of the elected government.
On May 11, a five-judge Constitution Bench of the Supreme Court held in its unanimous verdict that the government of Delhi has control over the transfer and posting of officials in the NCT, except with regard to public order, police, and land. Eight days later, the central government promulgated an ordinance that overruled the verdict of the apex court. This move by the government contradicts the constitutional morality of India and the judgment of the apex court.
Article 239AA of the Indian Constitution conferred special status on Delhi by enacting the 69th Constitutional Amendment Act. The Union Territory of Delhi was renamed the National Capital Territory of Delhi (NCT), providing a legislative assembly and council of ministers headed by the chief minister. The article also stated that three subjects — land, police, and public order — will fall under the purview of the central government, and that all the subjects in the state and concurrent list will come under the domain of the union territory of Delhi. The constitutional status conferred on Delhi for more effective and efficient governance clearly indicates that it has a greater degree of autonomy compared to other union territories. Thus, such a move by the central government to take control of the bureaucracy will cripple the Delhi government’s effective functioning and governance.
The act also undermines the principle of separation of powers as enshrined in the Indian Constitution. The National Capital Civil Services Authority (NCCSA), a three-member body established to make recommendations on transfers, postings, and disciplinary matters for civil servants, includes appointees from the central government as well. The decisions of the NCCSA will be based on a majority basis, and with two of its members representing the central government, they will clearly overrule the decisions made by the chief minister. Thus, the central government will have the power to handicap the authority of the Delhi government by taking control over the civil servants, thereby jeopardizing the execution of any program and developmental work to be carried out in the union territory.
The tussle between the central government and the government of Delhi over the enactment of the new law will have negative consequences for the governance of Delhi and its people. It will also lead to further litigation as the legality of the act will, in all probability, again be challenged in the Supreme Court, leading to further confusion and uncertainty.