The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was passed by the Central Government. It resulted in the nullification of the Judgement of the Constitutional Bench of the Hon'ble Supreme Court of India titled Government of NCT of Delhi v/s Union of India 2023 SCC OnLine SC 606 that upheld the powers of the elected government of Delhi over the Lieutenant Governor, who is appointed by the Central Government. The article analyses the implications of this ordinance on the constitutional status and autonomy of Delhi as a federal unit of India.

Hon'ble the Chief Justice of India Dr Justice D.Y. Chandrachud presided over the Constitutional Bench to adjudicate the issue. This case dealt with the power-sharing arrangement between the Central Government and the NCTD, which has an elected government and a Lieutenant Governor appointed by the President[i]. The main question was whether the LG has to follow the decisions of the NCTD's Council of Ministers, or he can act at his own discretion. The case was also triggered by several conflicts between the two governments on various issues such as appointments, transfers, policy decisions, etc.

The verdict was pronounced by a five-judge bench on May 11, 2023, and it vindicated the federal structure of India as envisaged by Article 239AA of the Constitution. This article confers special status to Delhi as the National Capital Territory and delineates the powers and functions of the elected government and the Lieutenant Governor. The verdict elucidated that the Lieutenant Governor has to act on the aid and advice of the Council of Ministers, except in matters of public order, police, and land.[ii]

Government of NCT of Delhi (Amendment) Ordinance, 2023

The Ordinance is a legislative instrument that alters the power-sharing arrangement between the central government and the elected government of Delhi. It was enacted by the President in May 2023, subsequent to the Supreme Court adjudication that the elected Government of NCTD has jurisdiction over services, excluding police, public order, and land. The ordinance has been assailed in the Supreme Court by the Delhi government and several civil society groups, who have contended that it is unconstitutional and undemocratic. Here are some of the salient features and issues of the ordinance:

It establishes a National Capital Civil Service Authority (NCCSA), which comprises the Chief Minister, the Chief Secretary of Delhi, and the Principal Home Secretary of Delhi. The NCCSA will proffer recommendations to the Lieutenant Governor (LG) pertaining to transfers and postings of officials and disciplinary matters. The LG, who is nominated by the President, will have the conclusive authority on these matters. It confers the LG the power to exercise his exclusive discretion on several matters, including those related to the NCCSA, and the summoning, prorogation, and dissolution of the Delhi Legislative Assembly.

This implies that the LG can supersede the decisions of the elected government and the Assembly on any matter, and can also meddle with the functioning of the legislature. It redefines the term "government" as the LG in the context of Delhi. This means that the LG's opinion will be imperative for any executive action by the Delhi government. It also excludes services from the legislative competence of the Delhi Assembly, which means that the elected government cannot enact laws or policies regarding the civil servants employed in Delhi.[iii]

Article 239AA of the Constitution of India, 1950

Article 239AA was introduced in the Constitution by the 69th Amendment Act in 1991. It bestowed a special status on Delhi, in accordance with the suggestions of the S Balakrishnan Committee.[iv] The provision grants Delhi an administrator and a Legislative Assembly, along with specific powers and limitations. The provision was enacted to address the unique situation of Delhi as the national capital and a metropolitan city, with a large population and diverse interests.

The provision aims to balance the need for democratic representation and effective administration while respecting the supremacy of the central government in matters of national importance. Article 239AA, which was incorporated in the Constitution by the 69th Amendment Act in 1991, confers a special status on Delhi, endowing it with an administrator and a Legislative Assembly, along with circumscribed powers and limitations. The administrator, designated as the Lieutenant Governor (LG), is appointed by the President and acts as his representative. The Legislative Assembly of Delhi possesses the competence to enact laws for the whole city or any segment of it. The legislative prerogative encompasses matters in the State List or Concurrent List, excluding police, public order, and land.[v] This provision accords the Assembly with a certain measure of legislative sovereignty within its domain.

However, the LG has the power to reserve any bill passed by the Assembly for the consideration of the President, if he deems it necessary in relation to any matter which falls outside the purview of the powers conferred on the Legislative Assembly or which is likely to affect the interests of any other state or any part thereof or relations with any foreign state or country. The Constitution Bench verdict in 2018 underscored that notwithstanding the fact that Delhi cannot be accorded the status of a state, the notion of federalism is pertinent to it. The verdict acknowledged the significance of cooperative federalism in the administration of Delhi, accentuating the distinctive character of the city's governance. The verdict also emphasized that the LG is not a parallel authority to the elected government, but rather a facilitator and a collaborator.

The proviso to Article 239AA stipulates that in the event of a divergence of opinion between the LG and the ministers, the matter shall be submitted to the President for a resolution. This provision ensures that conflicts are settled through a proper constitutional mechanism, with the ultimate authority resting with the President. The proviso also mandates that in such cases, the LG shall act in accordance with the decision taken by the President. However, pending such a decision, it shall be competent for the LG to take such action or to give such direction as he deems necessary in his discretion.

Article 239AA of the Constitution delineates Delhi's special status and governance framework. The recent Supreme Court verdict that expounded Article 239AA was invalidated with the enactment of an ordinance that sought to institute the National Capital Civil Services Authority.

Analysis of the Policy Decision:

• The Ordinance deprives the Delhi Assembly of its legislative competence over "services", which entails that the elected government is precluded from enacting laws or policies concerning the civil servants employed in Delhi. This divests the Delhi government of its authority over the administration and delivery of public services in the city.
   
• The Ordinance constitutes the National Capital Civil Services Authority, which comprises the Chief Minister, the Chief Secretary of Delhi, and the Principal Home Secretary of Delhi. The Authority will tender recommendations to the Lieutenant Governor (LG) pertaining to transfers and postings of officials and disciplinary matters. The LG, who is nominated by the President, will have the ultimate authority on these matters. This diminishes the role of the elected government to a consultative body and confers more powers to the LG, which is not answerable to the people of Delhi.

The Ordinance vests the LG with the exclusive discretion on several matters, including those related to the National Capital Civil Services Authority, and the summoning, prorogation, and dissolution of the Delhi Legislative Assembly. This implies that the LG can supersede the decisions of the elected government and the Assembly on any matter, and can also meddle with the functioning of the legislature. This impairs the democratic rights and representation of the people of Delhi and the principle of separation of powers between the executive and the legislative branches of government. It also breaks the "triple chain of accountability" that links the civil servants, the ministers, the legislature, and the citizens, as explained by the Supreme Court in its 2018 verdict.[vi]

Analysis of the Judgement of the Supreme Court of India:

• The Judgment would've given more autonomy and power to the elected government of Delhi to make decisions on matters related to the welfare and development of the people of Delhi, except for public order, police, and land.
• The Judgment clarified the roles and responsibilities of the LG and the Union Government and limited their executive power to only those matters that are excluded from Delhi's legislative domain.
• The Judgment would have empowered the Delhi government to make policies and rules regarding the appointment, transfer, and posting of civil servants in Delhi.
• The Judgment would've fostered a spirit of cooperative federalism and constitutional morality between the two parties and provided a mechanism for resolving any disputes or conflicts that may arise between them.
• The Judgment would've upheld the democratic rights and aspirations of the people of Delhi, who have elected their representatives to govern them. It also respected Delhi's special status and identity as the national capital territory.

General Analysis:
Subsequent to the pronouncement of the authoritative verdict by the Constitution Bench which adjudicated upon the contentious issue of administrative supremacy over the transfers and postings of civil servants in the National Capital Territory of Delhi ('NCTD'), the President, on 19th May 2023 exercised his extraordinary legislative power under Article 123 of the Constitution and promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which effectively restored the administrative control to the Union.

The Ordinance manifestly disregards the concerns of the Supreme Court. The Constitution Bench, which was specially constituted to adjudicate the power struggle, gave due weightage to the arguments of the parties and conducted the hearings on important non-miscellaneous days of the Supreme Court. It is also significant that five Hon'ble Judges, including Hon'ble the Chief Justice, devoted weeks of their unparalleled wisdom to the Judgment. The Ordinance thus shows a lack of respect for the judicial process and the constitutional interpretation of the Supreme Court. The Constitution Bench, which comprised of the Hon'ble Judges of the Apex Court examined the constitutional scheme and the legislative history of the Government of National Capital Territory of Delhi Act, 1991, and arrived at a harmonious and balanced conclusion that upheld the federal spirit and the democratic mandate of the people of the NCTD.

The Ordinance, on the other hand, seeks to undo the effect of the Judgment and tilt the balance of power in favour of the Union.[vii] The Ordinance also ignores the practical difficulties and administrative inefficiencies that may arise from such a unilateral and arbitrary change in the status quo. The Ordinance is supercilious to the judicial wisdom and authority of the Supreme Court.

The Ordinance is a blatant affront to the supremacy of the Supreme Court. The Ordinance not only nullifies the effect of the Supreme Court's judgment but also undermines the independence of the Indian Judiciary. The judgments of the Judiciary are supposed to be final and binding on the litigants, as they reflect the application of the rule of law and constitutional principles. However, in this case, one of the litigants, namely, the Union of India, has resorted to an extraordinary legislative measure to override the judicial verdict, thereby showing clear contempt for the authority and dignity of the Supreme Court.

The Ordinance also raises serious questions about the separation of powers and federalism in India, as it encroaches upon the domain of the elected government of the NCTD and vests excessive powers in the Lieutenant Governor, who is appointed by the President. The Ordinance thus violates the spirit and letter of the Constitution and threatens the democratic rights of the people of the NCTD. The Ordinance is therefore an illegitimate and unconstitutional act that deserves to be struck down by the Supreme Court.

Through the promulgation of the Ordinance, the Union of India has not directly challenged the Judicial Independence but has clearly shown its mal-contentment towards the Apex Court's decision. For the smooth functioning of a country, it is important that the decision of the Courts be binding and adhered to by the parties in dispute and if not should be appealed before the appellate courts. Simply, disregarding the Court's Order is irreverent.

The Ordinance has been challenged by the Delhi government in the Apex Court, alleging that it violates the Constitution and infringes upon the democratic rights and aspirations of the people of Delhi. The Ordinance has also attracted widespread criticism from various political parties, civil society groups, and legal experts as a scheme to undermine the federal structure and cooperative federalism in India. The Ordinance seeks to nullify the effect of the Supreme Court's judgment, which upheld the primacy of the elected government of the NCTD over the matters of transfers and postings of civil servants. The Ordinance also seeks to enhance the powers of the Lieutenant Governor, who is appointed by the President and acts as the representative of the Union.

The Ordinance profoundly interferes with the legislative intent of the Government of National Capital Territory of Delhi Act, 1991, and Article 239AA of the Constitution of India which conferred a special status on the NCTD and granted it a degree of autonomy and self-governance. The Ordinance also disregards the will and mandate of the people of Delhi, who have elected their representatives to govern them in accordance with their aspirations and interests.[viii]

The Ordinance also impairs the democratic rights and representation of the people of Delhi, who elect their government and their legislators in the Legislative Assembly. The Ordinance redefines the term "government" as the LG in the context of Delhi, which entails that the LG's opinion will be imperative for any executive action by the Delhi government. The Ordinance also excludes services from the legislative competence of the Delhi Assembly, which entails that the elected government cannot enact laws or policies concerning the civil servants employed in Delhi.

The Ordinance also vests the LG with the exclusive discretion on several matters, including those related to the summoning, prorogation, and dissolution of the Delhi Legislative Assembly. This implies that the LG can supersede the decisions of the elected government and the Assembly on any matter, and can also meddle with the functioning of the legislature.[ix]

Conclusion
The Ordinance reflects the Union of India's dissatisfaction and discontent with the Apex Court's decision. The Ordinance also undermines the judicial independence and authority of the Supreme Court, which is the final arbiter of the Constitution and the law. For the smooth functioning of a country, it is essential that the decisions of the courts be respected and complied with by the parties in dispute, and if not, they should be appealed before the appellate courts.

Simply disregarding or overriding the court's order is disrespectful and unlawful. The Ordinance violates the principle of res judicata, which means that a matter that has been finally decided by a competent court cannot be reopened or relitigated by the same parties.

The Ordinance also violates the principle of judicial review, which means that the executive and legislative actions are subject to the scrutiny and invalidation of the judiciary if they are found to be unconstitutional or illegal. The Ordinance thus shows a lack of faith and trust in the judicial system and creates an atmosphere of uncertainty and instability in the country. The Ordinance is therefore an affront to the rule of law and the constitutional democracy in India.

The Article addresses a significant issue concerning the Constitutional validity and Judicial efficiency of the Ordinance issued by the President under Article 123 of the Constitution, which modified the GNCTD Act, 1991, and shifted the balance of power between the Union and the NCTD. The paragraph states that the Supreme Court, being the guardian of the Constitution, has taken suo-moto notice of the matter and has referred it to a larger bench of five judges for a conclusive adjudication of the constitutional questions involved.

The article has further observed that the issue before the larger bench may not be identical to the one agitated by the NCTD government. Still, it will nonetheless require a considerable allocation of judicial time and resources that could have been otherwise employed for resolving other pending matters. The article concludes that this will have a detrimental impact on the rights of ordinary litigants who have to endure long delays in getting their matters decided by the Supreme Court. The paragraph thus underscores the need for a prompt settlement of the Constitutional dispute and a prudent exercise of the President's ordinance-making power.

End-Notes:

• https://www.scconline.com/blog/post/2023/05/13/explained-supreme-court-judgment-settling-tussle-between-delhi-govt-and-centre-legal-news/
• https://www.opindia.com/2023/05/supreme-court-centre-power-order-police-land-nct-of-delhi-power-posts-appoint-transfer-arvind-kejriwal-lg-tussle/
• https://prsindia.org/billtrack/the-government-of-national-capital-territory-of-delhi-amendment-ordinance-2023
• https://www.iasabhiyan.com/article-239aa-of-the-constitution/
• https://www.scconline.com/blog/post/2023/05/11/delhi-government-has-administrative-control-over-transfers-and-postings-of-civil-servants-in-nctd-legal-news/
• https://triumphias.com/blog/delhi-services-ordinance-2023/
• https://currentaffairs.adda247.com/delhi-services-bill/
• https://www.impriindia.com/insights/delhi-ordinance-bill-2023/
• https://www.livelaw.in/articles/why-gnctd-amendment-act-2023-may-not-pass-constitutional-test-despite-changes-from-services-ordinance-235443