Does ‘Delhi Services Bill’ undermine federalism?

History repeats. We all might have heard the famous cases of Kesavananda Bharati vs. the state of Kerala (1976), Maneka Gandhi vs. the Union of India (1978), or the State of West Bengal vs. the Union of India (1962). These cases are proof of the constant conflict between the centre and the state government. A similar situation arises once again. In the recent case GNCTD (the Government of the National Capital Territory of Delhi) vs. LG Delhi, the 2023 Supreme Court stated that in a democracy, “the real power of administration must reside in the elected arm of the state”, and the elected government in Delhi has the power to make decisions on all matters that fall within the purview of the Delhi legislative assembly. In response to this, a bill titled “The Delhi Services Bill”, formally called the Government of the National Capital Territory of Delhi (Amendment) Bill 2023, has been tabled in parliament and has now been passed in both houses. It is set to replace a current ordinance that overrides a directive of the Supreme Court that gives command to the government of Delhi over most services.

The ordinance has been a major reason for contention between the Delhi government and the central government. Replying to all the allegations on the bill, the Indian Home Minister stated that the power to make laws on Union territories lies with the central government, and since Delhi is a Union territory, the Centre has full rights to make rules for it as well. Finally, the Lok Sabha passed the bill after a nearly four-hour-long debate, and the Rajya Sabha passed the Delhi Services Bill (with 131 MPs voting in its favour). This bill once again questions the federal structure of Indian democracy. But a point to note here is that this is not the first case of conflict between the centre and the state government, and we should not be surprised if similar situations are once again faced in the future. These cases make Indian federalism unique.

Federalism is a system of government in which powers are divided between two or more levels of government, such as the centre and the states or provinces. Federalism allows for the accommodation of diversity and regional autonomy within a larger political unit. The Indian Constitution establishes a federal system with some unitary features. It is sometimes called a quasi-federal system, as it contains elements of both federation and union. The Constitution specifies the distribution of legislative, administrative, and executive powers between the union government and the state governments.

Going forward We will be having a detailed discussion on this bill and how it affects the federal structure of the world’s largest democracy. But before that, let’s have a brief look at the background of the issue and ask, “What is this article 239 AA in the constitution that gives Delhi its special status?

Background

      • The Delhi government and Lieutenant Governor have been in a legal battle since 2015 over:
            • control of “services” in Delhi.

        • 2019: The Supreme Court gave a split verdict in 2019.

        • 2023: A five-judge Constitution Bench recently (May 2023) granted more powers to the Delhi government over services.
              • It ordered that the Delhi government will have control over administrative services other than matters related to public order, police, and land.

          • Counter Action by the Central Government: To counter it, the central government passed the National Capital Territory of Delhi (Amendment) Ordinance, 2023.
                • It will now be replaced by the Government of National Capital Territory of Delhi (Amendment) Bill, 2023.

            • The ordinance excluded “services” from the purview of the Delhi legislature and conferred LG with more powers.
           

          Article 239 AA and Delhi

              • In general Union territories are Administered by the President of India through an appointed administrator

              • The administrator represents the President and exercises administrative powers in the Union Territories.

              • In some Union Territories, such as Puducherry, and Delhi the administrator holds significant powers, including the ability to make laws and regulations for the Territory.
                    • While in others, the administrator’s powers are limited to providing advice to the elected government only.

                • Following the recommendations of the S Balakrishnan Committee (set up in 1987 to look into Delhi’s demands for statehood).
                      • Article 239 AA was inserted in the Constitution by the 69th Amendment Act, 1991.

                  • This article conferred Special Status upon Delhi.
                        • NCT of Delhi will have an Administrator and a Legislative assembly.

                        • The Legislative Assembly shall have the power to make law for the whole or any part of the NCT with respect to any matters in the List or Concurrent List except on the subjects of police, public or and land.
                   

                  Key features of the Bill?

                      • The new bill Replaces the Delhi Services Ordinance and makes significant changes to the governance structure in Delhi.

                      • It aims to balance the interests of the nation with the interests of the Union territory of Delhi in the administration of the capital
                            • This is because important national and international institutions and authorities are located in Delhi.

                        • The Delhi Services Bill states that the inquiries and suspensions of the officials of the national capital will be under the Centre’s control.

                        • The Lieutenant Governor will be empowered to exercise his discretion on various matters, which will include the recommendations of National Capital Civil Services Authority and summoning and dissolution of the Delhi Legislative Assembly.

                        • This bill Introduces the National Capital Civil Services Authority (NCCSA) which will be responsible for
                              • Recommending transfers and postings of all Group ‘A’ officers (Indian Administrative Service – IAS) and Officers of DANICS (Delhi, Andaman and Nicobar Islands Civil Service) serving in the Delhi government and to provide recommendations to the LG on service matters.

                          • The National Capital Civil Services Authority will include the Chief Secretary of Delhi, the Principal Home Secretary of Delhi and the Delhi Chief Minister.
                         

                        Delhi Services Bill vs Federalism

                            • Federalism principle:
                                  • Which emphasises a clear division of powers between the federal government and state governments, is thought to have been violated by the Lieutenant Governor’s expanded powers under the ordinance.

                              • Critics argue that the,
                                    • Bill is unconstitutional because it directly overrules the Supreme Court’s judgement without amending the legal basis of the judgement.
                                          • It breaches the doctrine of separation of powers and undermines the principles of democracy and federalism.

                                      • Some fear that discretionary power given to LG could lead to conflicts between the elected govt. and LG.

                                      • The Bill might curtail the autonomy of the Delhi government in policy-making.

                                      • The Bill centralises power in the hands of the LG, diminishing the elected government’s authority.

                                      • Lieutenant Governor’s opinion shall take precedence over that of the elected government in the event of a disagreement, thus reducing the latter’s power.

                                      • The bill is undermining the democratic mandate by interfering with local governance.

                                      • Opponents claim that the Bill bypasses the elected government’s control over its administration and compromises the principles of accountability and efficiency.

                                      • Some argue that the Bill is a colorable legislation as it seeks to negate the Supreme Court’s judgement without changing its legal basis. It does not have the effect of taking away the basis of the judgement, which is constitutionally impermissible.
                                 

                                Current Status of the Bill:

                                    • The bill is passed by both houses of parliament, namely the Rajya Sabha and The Lok Sabha, and it will be promulgated into law once signed by India’s President Draupadi Murmu.

                                    • The bill might undergo judicial review by the Supreme Court of India to check its constitutional validity.
                                   

                                  Personal Opinion

                                  The potential implications of the Centre’s bill on administrative services in Delhi are wide-ranging and complex. Some of the key implications include:

                                      • The bill could undermine the authority of the Delhi government
                                            • The bill gives the LG of Delhi the final say on all matters related to administrative services, including transfers and postings of IAS and DANICS officers.

                                            • This could effectively give the LG control over the Delhi government’s bureaucracy, which could undermine the authority of the elected government.

                                        • The bill could lead to delays in decision-making.
                                              • The bill creates a new body, the National Capital Civil Services Authority, which will be responsible for making recommendations on transfers and postings of IAS and DANICS officers. This could lead to delays in decision-making, as the Authority will need to consult with the LG and the Delhi government before making any recommendations.

                                          • The bill could increase political tensions in Delhi.
                                                • The ordinance has been met with strong opposition from the current government in Delhi.

                                                • The Aam Aadmi Party (AAP) has accused the Centre of trying to undermine the authority of the elected government and of interfering in the affairs of Delhi.

                                                • This could lead to increased political tensions in Delhi, which could have a negative impact on the city’s governance.
                                           

                                          It is still too early to say what the long-term implications of the bill will be. The implications of the bill will likely depend on how it is implemented and how the court rules on its validity. However, it is clear that the bill has the potential to have a significant impact on the governance of Delhi.


                                          By: Abhishek

                                          Abhishek P

                                          Abhishek P

                                          Winner of Independence Day Blog Writing competition by NFA