Source: Times of India

Why in News?

On 7^th August 2023, Rajya Sabha passed Government of National Capital Territory of Delhi (Amendment) Bill, 2023.

• The law repeals the ordinance on Capital Service Control, overrides the Supreme Court's (SC) decision in favour of the Elected State Government and provides the Lieutenant Governor (LG) additional authority over Delhi's administration.

Background

• The 2015 Notification added Entry 41 to the list of exceptions under Article 239 AA(3(a)) and granted the LG of Delhi the authority to deal in matters connected with services, public order, police and land in which he can consult the Chief Minister.
  • The notification that the Government of NCT of Delhi cannot make laws for Entry 41 - "Services" as it is outside the purview of the legislative assembly of NCT of Delhi was upheld by The High Court of Delhi in 2016.
• Thereafter SC’s constitution bench decided in the case of Government of NCT of Delhi v. Union of India (2023) that NCT of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land and the LG shall be bound by the decision of Delhi Government in such matters.
  • The Central Government henceforth promulgated The Government of NCT of Delhi (Amendment) Ordinance overruling the Apex Court’s verdict.
• The Delhi Government had approached the SC challenging the Ordinance, who referred the matter to a Constitution Bench for adjudication in July 2023.
  • While the matter was still pending with the Constitution Bench, the bill was tabled in Lok Sabha and approved on 3rd August 2023 and even though opposition collectively called the bill "unconstitutional", it was passed in the Rajya Sabha.
• Regarding the ordinance making powers, the SC has earlier held in the case of Krishna Kumar Singh v. State of Bihar (2017) that the power to promulgate ordinances was conferred on the President to prevent a state of constitutional vacuum when “unforeseen events may arise which need legislative redressal.”

Government of Capital Territory of Delhi (Amendment) Bill, 2023

• Establishment of NCCSA: The Bill seeks to establish a permanent authority named "National Capital Civil Service Authority" to take decisions with respect to the postings and control of civil servants.
  • NNCSA will consist of the Chief Minister of Delhi (as its head), the Chief Secretary and the Principal Secretary (both from the Government of NCT of Delhi).
  • NCCSA will make recommendations to the LG regarding transfers and postings of all Group 'A' officers serving in the affairs of the Government of NCT of Delhi barring officers handling matters related to public order, land and police.
• Final Authority to LG: In case of any difference of opinion, LG's decision will prevail.
  • Modification of Section 45D of the Ordinance gives power to the Centre regarding the appointments to statutory commissions and tribunals in Delhi.
    • Section 45D suggests that any authority, board, commission or any statutory body, or any office bearer or member thereof, constituted or appointed by or under any law for the time being in force, in and for the NCT of Delhi, shall be constituted, appointed or nominated by the President.
• In relation to bodies created under Parliament Law: Members shall be constituted or appointed or nominated by the President.
  • The Legislation passed by the Parliament allows department secretaries to take matters to LG, Chief Minister and Chief Secretary without consulting the concerned minister.
• In relation to bodies created under the Delhi Assembly Laws: NCCSA shall recommend a panel of suitable persons for constitution or appointment or nomination by the LG, in accordance with the provisions of section 45H.

Legal Provisions

Ordinance Making Power of the President

• Article 123 of the Indian Constitution grants the President of India law making powers.
• Conditions:
  • The President can only promulgate at a time except when both Houses of Parliament are in session.
  • The President is of the opinion that there are circumstances that require him to take immediate action.
  • While passing an ordinance, the President should be satisfied; that such circumstances exist which require immediate action on part of the President.
• After the ordinance has been passed it is required to be approved by the parliament within six weeks of reassembling.
  • The same will cease to operate if disapproved by either house of parliament.
• In case of Venkata Reddy v. State of Andhra Pradesh (1985) the SC held that the Satisfaction of the President cannot be called in question in the Court of law and is out of judicial review.
  • Whereas in D.C. Wadhwa v. State of Bihar (1987) (which reflected upon the issue of ordinance making power of the governor), the SC opined that when ordinances are frequently issued and re-issued, it violates the spirit of the Constitution and result in an ‘ordinance raj’ and called this practice a constitutional fraud.