Explainer: The fight over Civil services in Delhi

After the Supreme Court ruled that the Government of the National Capital Territory (GNCT) of Delhi can make laws and decide on administrative matters with regards to the NCT civil services and curtailed the role of the lieutenant governor, the Centre responded with an ordinance and again appropriated such powers. Sarthak Ray takes a look at the issue.

Background

A Constitution Bench of the SC, headed by Chief Justice of India DY Chandrachud, ruled on May 11 that the Centre-appointed L-G has a say over GNCT bureaucrats (including appointments) only in three areas —land, police, and public order. The judgment was widely held as protecting the democratic authority vested in the elected government of the NCT by recognising its prerogative on administration and law-making when it came to the civil services in the NCT, under the oversight of its departments.

This was seen as a decisive end to the legal tussle between the GNCT and the Centre over the control of the services, which arose in 2015 when the Centre arrogated onto itself (the L-G) powers over the GNCT civil services via a home ministry notification.

The ordinance

On May 19, the Centre effectively nullified the SC judgment, promulgating the Government of National Capital Territory of Delhi (Amendment) Ordinance. The Ordinance ostensibly aims to balance “the local … interests of the people of Delhi with the democratic will of the entire nation”.

The 2015 notification said the L-G would consult the NCT CM at her/his discretion. But, the ordinance creates a National Capital Civil Service Authority (NCCSA) that the CM will chair, with the GNCT chief secretary and principal home secretary as members. It will make recommendations to the L-G on matters related to the GNCT civil services—including postings, transfers, disciplinary action, etc—except in the areas of land, police and public order, through majority voting; in case of a difference of opinion with the L-G, the L-G’s view will prevail.

Ordinance, the Centre’s powers and the L-G’s powers

The ordinance provides that the Centre will be the sole authority to make rules on “the powers, duties and functions of officers and other employees appointed or posted” and “the qualifications of candidates for appointment to the posts and the manner of selection for the appointments”. Crucially, it vests the Centre with a lot of discretionary power, saying the latter will form the rules on “any other matter for which, in the opinion of the Central government, provisions are to be made by rules.”

With the L-G vested with veto power on NCCSA decisions, the Centre’s proxy in the GNCT structure now wields total control over all the aspects of the civil services in the NCT—this disposes with the judicial wisdom of the May 11 and the 2018 SC judgments, both of which curtailed the office’s powers. By virtue of the provisions of the ordinance, the L-G is no longer tethered by the “aid and advice” of the elected GNCT when it comes to executive power that are under the legislative domain of the GNCT. The SC had cautioned that the LG shouldn’t be using his discretionary power all to frequently, heedless of the advice of the GNCT, but now, the L-G’s office is vested with near total discretionary power on services. The Aam Aadmi Party, which is in power in the NCT, has said it will challenge the ordinance.

Judgment & ordinance

The May 11 judgment vested the control of the services with the council of ministers of the GNCT, under the “triple chain of command” (TCC) principle, where the services are accountable to the ministers who are accountable to the legislature which, in turn, is accountable to the people of NCT. But by allowing the services—via NCCSA membership for the two senior GNCT bureaucrats—to overrule the council of ministers (represented by the CM), the ordinance trashes the TCC principle.

While the Centre had argued in court that the NCT wasn’t a fully fledged state, and, as an Union Territory, was extensively under the Union government, the top court cited Article 239 A(3) to say that the GNCT had legislative powers that resembled that of the states’, and the elected government was accountable to the people of NCT. The ordinance, by denying the GNCT authority over the services, has upended the SC judgment.