The Government of National Capital Territory of Delhi (Amendment) Bill, 2023, was introduced in Lok Sabha on August 1, 2023. 

It amends the Government of National Capital Territory of Delhi Act, 1991. 

The Bill repeals the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 which was promulgated on May 19, 2023. 

The Bill will retrospectively apply from May 19, 2023

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

• transfers and postings
• Matters related to vigilance
• Disciplinary proceedings
• Prosecution sanctions of Group A officers of All India Services (except Indian Police Service), and officers of Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services. Officers serving in connection with the subjects of police, public order, and land will not come under the Authority’s purview.

The Authority will consist of the:

• Chief Minister of Delhi as Chairperson,
• Principal Home Secretary of Delhi as Member Secretary,
• Chief Secretary of the Delhi government as member.

The Principal Home Secretary and Chief Secretary are appointees of the central government.

 All decisions of the Authority will be based on a majority of votes of the members present and voting. 

The quorum for a meeting will be two members.

Powers of the Lieutenant Governor:  Under the Act, matters, where the LG shall act on his discretion, are:

• Matters outside the legislative competence of the Delhi legislature but which have been delegated to the LG, or
• Matters where he is required by a law to act in his discretion or exercise any judicial or quasi-judicial functions.

The Bill specifies that in these matters, the LG will act in his sole discretion. 

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. 

Additionally, the LG has sole discretion over all his functions under the Bill.

Appointments and conditions of service:  The Union Public Service Commission will recommend appointments for Group A and B gazetted posts. 

Appointments to Group B and Group C non-gazetted posts will be recommended by the Delhi Subordinate Services Selection Board. 

Group A includes senior management roles,

Group B includes middle management roles, and

Group C includes clerical assistance roles. 

The central government may make rules to provide for tenure of office, qualification, salaries, powers and functions, transfer, and suspension of officers of the Delhi government.

Disposal of matters by Ministers:  A Minister of the Delhi government may issue standing orders for disposal of matters brought to his attention. 

The order should be issued in consultation with the concerned Department Secretary. 

Certain matters must be submitted to the LG, through the Chief Minister and the Chief Secretary, for his opinion prior to issuing any orders.  These include proposals affecting:

• The peace and tranquillity of Delhi,
• Relations between the Delhi government and the central government, Supreme Court, or any state government,
• Summoning, prorogation, and dissolution of the Legislative Assembly, and
• Matters where the 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 the High Court of Delhi.

Power to appoint: Under the Bill, the power to appoint authorities, boards, commissions, statutory bodies, or office bearers will lie with:

• The President for any law of Parliament, and
• The LG for any law of Delhi legislature, based on the recommendation of the Authority.

Delhi government not having control over services may violate the basic structure

The Bill effectively gives the central government powers over services in Delhi. 

If the Delhi government does not have control over civil servants, it cannot execute any programs across any sector in its jurisdiction. 

This may violate the triple chain of accountability, which is an essential feature of parliamentary democracy. 

The LG may not be bound to act on the aid and advice of the Council of Ministers.

As per Article 239AA, the LG has to act on the aid and advice of the Council of Ministers, except when exercising his functions in his discretion.

These provisions may violate the principle of the LG acting on the aid and advice of the Council of Ministers on matters within the executive competence of the latter. 

They also contradict the 2018 judgement of the Supreme Court which stated that the decision-making power lies with the elected government.

Certain terms in the Bill are unclear.

Sole discretionary power of the LG

The Bill specifies that in some matters, the LG will act in his sole discretion.  It is unclear how the ‘sole discretion’ of the LG is different from ‘discretion’.