National Capital Territory of Delhi (Amendment) Ordinance 2023
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National Capital Territory of Delhi (Amendment) Ordinance 2023

The President of India exercised legislative power under Article 123 of the Constitution to promulgate The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023. It was promulgated on May 19,2023.

What does the ordinance do?

The Ordinance specifies that the Delhi Legislative Assembly will not have the power to legislate on the subject of ‘services’, which comes under the State List as entry 41. Services include matters related to appointments and transfers of employees of the Delhi government, and vigilance.

As per Article 239AA of the Constitution, the Delhi Legislative Assembly has powers to make laws on subjects in the State List and the Concurrent List, barring:

  • Public order (entry 1),
  • Police (entry 2)
  • Land (entry 18)

The ordinance inserted entry 41 of List II (State list) into Article 239AA(3)(a), thereby expanding the scope of excepted matter from three (1, 2, 18) to four (1, 2, 18, 41).

The Ordinance establishes the National Capital Civil Services Authority to recommend to the Lieutenant Governor of Delhi (LG):

  • Transfers and Postings
  • Matters related to Vigilance
  • Disciplinary Proceedings
  • Prosecution Sanctions

of Group A of All India Services (except Indian Police Service), and Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu, and Dadra and Nagar Haveli (Civil) Services.   

National Capital Civil Service Authority (NCCSA):

  • It will be headed by the CM of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi being the other two members.
  • The quorum for a meeting is two people.
  • Officers serving in connection with the subjects of police, public order, and land will not come under the Authority’s purview.
  • All matters are required to be decided by a majority of votes. This means that the decision of the elected CM can be overruled by the two senior bureaucrats.

Role of LG:

It expands the discretionary role of the LG by giving him powers to approve the recommendations of the Authority or return them for reconsideration.  The LG’s decision will be final in the case of a difference of opinion between him and the Authority.

Certain matters must be submitted to the LG, through the Chief Minister, for their opinion prior to the issue of any order. These include proposals affecting:

  • the peace and tranquility of Delhi
  • relations between the Delhi government and the central government, Supreme Court, or other state governments
  • summoning, prorogation, and dissolution of the Legislative Assembly
  • matters on which LG is to give an order in his sole discretion

Additionally, the concerned Department Secretary must bring certain matters to the notice of the LG, the Chief Minister, and the Chief Secretary.  These include matters which may bring the Delhi Government into controversy with the central or any state government, the Supreme Court, or High Court of Delhi.

Issue with the Ordinance:

  • The ordinance negates a Constitution Bench judgment of the Supreme Court that brought “services” under the Government of National Capital Territory of Delhi (NCTD).
  • The SC said that-
  • The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has power to legislate
  • The executive power over “services” (entry 41) can be exercised exclusively by the Government of the NCTD.
National Capital Territory of Delhi (Amendment) Ordinance 2023

The Path Ahead:

The Ordinance can be challenged in Supreme Court for a review and Union Government would have to prove why it was necessary to promulgate such an ordinance days after Supreme Court’s ruling. In similar cases such as DC Wadhwa case 1986 and Krishna Kumar Singh 2017, the constitutional bench of the apex court has ruled that ordinances should not be used to serve political ends and satisfaction of the President under Article 123 is not immune from judicial scrutiny; not a parallel source of law-making or an independent legislative authority.

Please read more details about Administration of Delhi & related amendments, orders at the given link

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