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Shifting Powers: Analyzing The Government Of National Capital Territory Of Delhi (Amendment) Bill, 2023 – IMPRI Impact And Policy Research Institute

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Shifting Powers: Analyzing the Government of National Capital Territory of Delhi (Amendment) Bill, 2023

Reet Lath

In the realm of Indian politics, the Government of National Capital Territory of Delhi (Amendment) Act, 2023, has emerged as a central point of debate and discussion. Its significance in shaping the governance of the National Capital Territory cannot be overstated, and its impact is expected to extend far beyond Delhi’s borders. With its passage in the Lok Sabha and the Rajya Sabha, the time has come to examine the contents of this bill and assess its practical impact.

Background

The power dynamics within Union Territories (UTs) in India have always been a subject of intricate constitutional discussions. While most Union Territories are directly governed by the President or an appointed administrator, Delhi and Puducherry stand apart with their legislatures and councils of ministers. This legislative framework was established in Delhi, for instance, in 1991-92 under the 69th Amendment Act (Article 239AA).

The Delhi Legislative Assembly has the authority to legislate over subjects in the State and Concurrent Lists, with a few notable exceptions like police, public order, and land. These unique circumstances have been defined by the  Government of National Capital Territory of Delhi (GNCTD) Act, 1991, which sets the stage for the functioning of the Delhi Assembly and government, outlining the powers of each entity.

The ongoing debate surrounding power-sharing between the Delhi government and the central government has made its way to the Supreme Court on multiple occasions. In 2015, the Ministry of Home Affairs shifted service control to the Lieutenant Governor (LG). In 2021, the Union government amended the GNCTD Act, expanding LG’s mandatory opinion and Bill referral to the President, altering Delhi’s governance landscape.

However, in the landmark decision of May 11, 2023, the Supreme Court rendered its verdict on the control of services within Delhi. The central question revolved around whether the elected Chief Minister or the appointed Lieutenant Governor should hold control over Delhi’s services and civil personnel. 

A five-judge constitutional bench of the Supreme Court ruled in favor of the Delhi government, granting it legislative and executive control over the administrative services, but still, police, public order, and land remained under the exclusive authority of the central government. This ruling reaffirmed the 2018 judgment, which stipulated that the LG must follow the advice of the Council of Ministers, thereby negating independent decision-making powers.

In response to the Supreme Court’s judgment on service control in Delhi, the GNCTD (Amendment) Ordinance, 2023, was promulgated on May 19, 2023. Following this, the GNCTD (Amendment) Bill, 2023, was introduced in the Lok Sabha on August 1, 2023. The bill was subsequently passed in the Lok Sabha on 3rd August and in the Rajya Sabha on 7th August, solidifying its progress through the legislative process.

Provisions of the Bill

The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 introduces a series of significant changes to the governance structure of Delhi. A prominent feature of this bill is the establishment of the National Capital Civil Services Authority (NCCSA), tasked with making recommendations to the Lieutenant Governor of Delhi (LG) on specific matters related to civil services. These matters encompass transfers, postings, vigilance issues, disciplinary proceedings, and prosecution sanctions concerning Group A officers of All India Services (excluding Indian Police Service) and DANICS officers posted in Delhi.

The NCCSA will comprise high-ranking officials, with the Chief Minister of Delhi serving as the Chairperson, the Principal Home Secretary as Member Secretary, and the Chief Secretary as a member. Appointments of the Principal Home Secretary and Chief Secretary will be made by the central government. Decisions within the NCCSA will be reached through a majority vote of the members present, with a minimum quorum of two members required for a meeting.

Additionally, the measure greatly enhances the discretionary powers of Delhi’s Lieutenant Governor (LG). It gives the  LG sole authority over several critical issues, such as approving or returning the NCCSA’s recommendations for reconsideration. In the event of a disagreement between the LG and the NCCSA, the decision of the LG will prevail as final.

Furthermore, the bill establishes a framework for the disposal of matters by ministers in the Delhi government. Ministers may issue standing orders for handling matters brought to their attention, provided they consult with the relevant Department Secretary. Specific matters with significant implications, such as those concerning Delhi’s peace and tranquility, relations between the Delhi government and the central government, summoning and prorogation of the Legislative Assembly, and those requiring the LG’s sole discretion, must be submitted to the LG for his opinion via the Chief Minister and Chief Secretary before any orders are issued.

To prevent and manage potential disputes between the Delhi Government and the central government or other authorities, the bill empowers department secretaries to alert the LG, Chief Minister, and Chief Secretary to any issues that may potentially create disputes between the Delhi Government and the Central Government.

These developments have ignited a fresh wave of debate on the allocation and exercise of power in India’s capital city, demanding a closer examination of the delicate balance between regional autonomy and central authority.

Significance

The Government of National Capital Territory of Delhi (Amendment) Bill addresses the unique administrative and political status of Delhi, India’s capital city. The Government of National Capital Territory of Delhi (Amendment) Bill takes into account the unique status of Delhi as the national capital, recognizing its profound impact not only on its residents but also on the entire nation and its international reputation. This bill acknowledges that decisions taken in the capital have far-reaching consequences, potentially affecting the nation’s image and prestige globally.

Consequently, it underscores the larger national interest in the governance of the national capital, emphasizing the need for a role for the people of the entire country through the democratically elected Central Government. This approach seeks to promote national interests while respecting the democratic aspirations of Delhi’s residents, recognizing the city’s distinct characteristics and importance on the national stage. Simultaneously, the bill aims to focus on ensuring effective governance while upholding democratic norms, and fostering transparency, accountability, and people-centric governance.

Implications: The Drawbacks

The GNTC Amendment Bill, a highly consequential piece of legislation, has generated significant debate and scrutiny. The critics of the bill raise several significant concerns regarding its potential consequences, arguing that it goes against the principles of federalism envisioned in the Constitution of India. One prominent worry is related to the bill’s provision conferring powers over the transfer and posting of officers to the LG.

Critics argue that this change may disrupt the traditional triple chain of accountability that links civil services, ministers, the legislature, and citizens. This, they contend, could infringe upon the principle of parliamentary democracy, which is a vital component of India’s basic structure doctrine. Therefore, the opposition labeled it as the “murder of democracy.”

Another point of contention lies in the bill’s grant of sole discretion to the LG in various critical matters, including the convening of the Legislative Assembly. Under existing provisions, the LG must typically act on the advice of the Council of Ministers, except in cases of discretion. However, the Bill expands the LG’s discretionary power to include matters related to Delhi’s government’s relations with the central government.

This expansion has sparked concerns about potential violations of the LG’s role in the aid and advice of the Council of Ministers and contradicts a 2018 Supreme Court judgment affirming the elected government’s decision-making authority. This was evident in Mr. Premachandran’s expression that if the elected government in Delhi lacks authority over the bureaucrats, it essentially equates to the absence of a government in Delhi. Additionally, certain terms in the Bill, like “sole discretionary power,” lack clarity, potentially leading to ambiguity and disputes.

Additionally,  some express concerns about the provision that allows department secretaries to bypass concerned ministers and bring certain matters directly to the LG, Chief Minister, and Chief Secretary. This deviation from the traditional collective responsibility of the Cabinet may affect the cohesive decision-making process within the government.

Conclusion

While the introduction of the Bill aimed to enact significant administrative reforms in the governance of the national capital, it has raised concerns regarding its potential impact on the authority of the Honorable Supreme Court. It remains a subject of scrutiny whether the Bill will genuinely usher in a substantial transformation of the national capital’s governance or if its primary role will be to curtail the Delhi Government’s powers, particularly in matters related to services.

References

  1. The Constitution of  India. Article 239. 
    https://www.mea.gov.in/Images/pdf1/Part8.pdf
  1. The Government of India. (2023). The Government of National Capital Territory of Delhi (Amendment) Bill 2023. https://egazette.gov.in/WriteReadData/2023/248046.pdf?utm_campaign=fullarticle&utm_medium=referral&utm_source=inshorts
  1. PRS Legislative Research. (2023).  The Government of National Capital Territory of Delhi (Amendment) Bill 2023. https://prsindia.org/billtrack/the-government-of-national-capital-territory-of-delhi-amendment-bill-2023
  1. Government of NCT of Delhi vs. Union of India. (Supreme Court. 2017).
    https://main.sci.gov.in/supremecourt/2016/29357/29357_2016_1_1501_44512_Judgement_11-May-2023.pdf
  1. The Government of India. (2021). The Government of National Capital Territory of Delhi (Amendment) Bill 2021. https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/19032021_172541_1021205239.pdf
  1. Government of NCT of Delhi vs Union of India. (Supreme Court. 2018). https://main.sci.gov.in/supremecourt/2016/29357/29357_2016_Judgement_04-Jul-2018.pdf
  1. Amita Singh. (2021). The Challenges of Governing Delhi: GNCTD Amendment Bill. IMPRI India. https://www.impriindia.com/insights/gnctd-amendment-challenges-governing-delhi/

Disclaimer: All views expressed in the article belong solely to the author and not necessarily to the organization.

Authored by Reet Lath, Research Intern at IMPRI.

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