Why GNCTD (Amendment) Act 2023 May Not Pass Constitutional Test Despite Changes From Services Ordinance?

On August 12, the Government of National Capital Territory of Delhi (Amendment) Act 2023, which seeks to diminish the powers of the elected government of Delhi over services, received the assent of the President and came into effect from May 19, 2023.

It may be recalled that May 19 is the date on which the President promulgated the GNCTD(Amendment) Ordinance 2023 containing similar provisions, a week after the Supreme Court’s Constitution Bench judgment in Govt of NCT of Delhi vs Union of India upholding the power of Delhi Government to control services (except in matters related to police, law & order and land). In an earlier article, this author had argued that the Delhi Services Ordinance falls foul of the Constitution, broadly for two reasons - for blatantly overriding the Supreme Court’s judgment without altering its legal basis and for undermining the role of the democratically elected government.

Notably, in the Act which was passed by the Parliament in the recently concluded monsoon session, certain changes have been made from the Ordinance. The Act has omitted the provisions intending to insert Section 3A and 45D in the principal legislation, the GNCTD Act 1993. Section 3A contained a declaration that Delhi Legislative Assembly will not have any power over matters enumerated in Entry 41 of List II of the Seventh Schedule (services). Also, to override the Supreme Court judgment, Section 3A further stated that the provision will operate “Notwithstanding anything contained in any judgment, order or decree of any Court”. Section 45D sought to give ultimate powers to the President for making appointments to the statutory bodies in Delhi. The Act has diluted the originally proposed form of Section 45D to give recommendatory role to the State Authority in the appointments to State bodies.

The provision which is more relevant for our discussion is Section 3A. It is interesting to note that while hearing the Delhi Government’s petition challenging the Ordinance provisions, Chief Justice of India had noted that Section 3A has the effect of amending the Constitution by taking services out of Delhi Government’s control. Senior Advocate Harish Salve, who was representing the Delhi Lieutenant General, had told the Court then that Section 3A might not be present in the Bill which will be introduced to replace the Ordinance.

While tabling the Bill in the Lok Sabha, Union Home Minister Amit Shah said that certain views were expressed that the Ordinance’s validity was in the “gray area”. He asserted that the Act is totally valid as the doubted provisions have been omitted.

Let us analyze if the Act can pass the Constitutional test after the tweaks. Before delving into the discussion, we have to keep in mind that the Parliament has the power to make laws over the subject of ‘services’ in relation to the Delhi Government. This was clarified by the Supreme Court in its Constitution Bench judgments in 2018 and 2023 in the GNCTD vs Union of India cases. So, the existence of the Parliament’s power is beyond the pale of dispute. The discussion here is only regarding the manner in which the power has been exercised.

Undermining authority of elected government : Act has the same effect as the Ordinance, despite the changes

Even without the contentious provision of Section 3A, the effect of the Act is substantively the same as the Ordinance. The power of the Delhi Government to take decisions in relation to the transfer, posting and disciplinary proceedings of civil servants are diminished. These decisions are to be taken by the Delhi LG on the recommendations of a body called the National Capital Civil Service Authority, which consists of the Delhi Chief Minister and two bureaucrats - Chief Secretary and Home Secretary of the Delhi Government. The Act also says that in case of difference of opinion, the decision of the Lieutenant Governor shall be final. In other words, the LG can unilaterally take decisions in relation to services.

Thus, the Act undermines the primacy of the elected government and consequently violates the Supreme Court Constitution Bench judgments of 2018 and 2023, both in letter and spirit. In the 2018 case, Justice Chandrachud (as he then was) wrote that Article 239AA represented a clear mandate of the Constitution to provide Delhi an institutional governance founded on “participatory, representative and responsive government”. “In a democratic form of government, real power must subsist in the elected arms of the State”, Justice Chandrachud further held. Similar evocations can be found in the 2023 judgment too, which unequivocally asserted the primacy of the elected government. How can there be ““participatory, representative and responsive” governance if an unelected authority can take unilateral decisions relating to administration?

The Act has the effect of completely taking away services from the purview of Delhi Assembly and Delhi Government, though it does not expressly state so. Since the Parliament law is occupying the field of services, the Delhi Assembly cannot legislate on this subject. While the Ordinance expressly negated the Delhi assembly (and the Delhi Government) and openly challenged the Supreme Court judgment, the Act does it implicitly.

Overriding the judgment without altering its basis

The previous article relating to the Ordinance had discussed how it was impermissible for the legislature to nullify a judgment without altering its legal basis. The Act also suffers from the same vice. Though it refrains from expressly negating the Supreme Court judgment, it has the effect of doing so.

The basis of the judgment is Article 239AA (3)(a) of the Constitution which says that the Delhi Legislative Assembly has powers over all matters in List II except the matters in Entries 1, 2 and 18 (public order, police and land). Since “services” is not exempted in Article 239AA(3)(a), the Delhi assembly has powers over it and consequently, the Delhi Government has executive powers on the subject - this is the long and short of the judgment.

Article 239AA(3)(a), the basis of the judgment, is still there in the Constitution intact. The Act does not(and cannot) amend Article 239AA(3)(a) to exempt “services” from the legislative powers of the National Capital Territory of Delhi. So the Act does not have the effect of taking away the legal basis of the judgment. It is merely nullifying the effect of the judgment, without disturbing its legal basis, which is an impermissible exercise.

Can the Act be seen as an exercise of powers under Article 239AA(7)?

The Centre cited Article 239AA(7) as a source of power for the Act. Article 239AA 7(a) says that the Parliament can make law for “giving effect to, or supplementing” the other provisions contained in Article 239AA and for “all matters incidental or consequential thereto”.

Article 239AA(7)(b) provides that a law made under Article 239AA(7)(a) “shall not be deemed to be an amendment of the Constitution for the purposes of Article 368 notwithstanding that it contains any provisions which amends or has the effect of amending this Constitution” .

So, there could be a counter-argument that the Parliament need not exercise its constituent powers of amending the Constitution in order to make a law under Article 239AA(7)(a), although it has the effect of amending any provisions in Article 239AA. However, in the instant case, this argument is unsustainable. The law under Article 239AA (7)(a) is for “giving effect to, or supplementing” the other provisions in Article 239AA. The keywords are “giving effect to, or supplementing”. The Act, which limits the powers of Delhi Assembly and Delhi Government by taking away the subject of “services” from them, cannot be considered as a law which is “giving effect to, or supplementing” the other provisions in Article 239AA. On the contrary, the Act has the effect of diluting Article 239AA. Hence, in this author’s humble view, the Act cannot be construed as a law made under Article 239AA(7)(a).

Act undermines democratic form of government, triple chain of accountability

The Supreme Court’s May 11 judgment was not solely based on the text of Article 239AA but invokes larger constitutional principles of democracy and federalism. Noting that the Constitution itself envisaged an elected government and legislative assembly for the NCTD, the Court said that it has to adopt an interpretation which will advance the interests of democracy and federalism.

The Court also invoked the principle of “triple chain of accountability” , which means that the civil servants must be accountable to the elected government which in turn is accountable to the people. The insulation of civil servants from the control of elected government will break the triple chain of accountability. This danger, which the Supreme Court wanted to avert through its judgment, will be perpetuated by the Act. The Act also violates the principle of cooperative federalism, as the Central Government’s appointee(LG) is given a veto power over the elected government.

Delhi is not a UT where Centre can have a free run

In the discussions relating to the Act, the supporters of the Act often raise the argument that Delhi is not a State to contend that the Centre’s fiat can run there unfettered as if it is a Union Territory. However, it is to be noted that the Supreme Court has held that Delhi has a ‘sui generis’ position in our Constitution and that it cannot be compared to a UT. The majority in the 2018 Constitution Bench judgment held that while NCTD could not be accorded the status of a State, the concept of federalism would still be applicable to NCTD

While NCTD remains a Union Territory, the Court said, the unique constitutional status conferred upon it makes it a federal entity for the purpose of understanding the relationship between the Union and NCTD.

“The Union and NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a “State””, the 2023 judgment stated. The Act has the effect of disturbing this unique federal relationship of asymmetric federalism envisaged by the Constitution.

(Manu Sebastian is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in)