On Monday, the Rajya Sabha successfully approved the Government of NCT of Delhi (Amendment) Bill, 2023, effectively replacing the previously enacted Delhi Services Ordinance issued by the President of India on May 19.
Due to technical glitches with the Automatic Vote Recorder, members of the Rajya Sabha had to cast their votes using slips to decide the fate of the bill. In the end, the bill received support from 131 MPs, while 102 MPs voted against its passage.
Earlier, on August 3, the Lok Sabha had already passed the bill through a voice vote.
During the deliberation on the Bill within the Rajya Sabha, Ranjan Gogoi, the former Chief Justice of India and a nominated member of the Rajya Sabha, offered his perspective. He emphasized that the Bill does not infringe upon the Supreme Court’s verdict regarding Delhi’s services. He cited Article 239AA(3)(b) of the Indian Constitution, which empowers the Parliament to enact laws on State subjects in Delhi, except for three specific subjects.
Gogoi clarified, “In my interpretation, State legislatures create laws for States, while Parliament does so for Union Territories. In the case of NCT of Delhi, the legislature creates laws for State subjects, barring three exceptions. As per 239AA(3)(b), Parliament is empowered to enact laws beyond these three exceptions. This is precisely what the Bill seeks to achieve. Consequently, the issue of overreach does not arise.”
Furthermore, Gogoi noted that the law might potentially be scrutinized for its alignment with Article 14, concerning arbitrariness, although he expressed his view that the law appears to lack arbitrariness.
Addressing concerns about the Bill’s compatibility with the Constitution’s basic structure, Gogoi referred to a book by TR Andhyarujina, a former Solicitor General of India, on the Kesavananda Bharati case. Gogoi argued that the doctrine of basic structure, as presented in the book, has a debatable jurisprudential foundation.
Gogoi concluded his inaugural parliamentary speech by stressing that Article 239AA was not a subject of dispute before the Supreme Court. Therefore, he asserted that the bill is entirely valid and lawful. He added, “What is permissible need not necessarily be morally right. In my view, the Bill is morally right, but those who disagree should be allowed to hold their own conscience.”
The original ordinance, titled the Government of National Capital Territory of Delhi (Amendment) Ordinance, was introduced to modify the 1991 Government of National Capital Territory of Delhi Act. Its objective was to grant predominant authority to the Lieutenant Governor (LG) of Delhi regarding officer transfers, appointments, and control within Delhi.
The ordinance justified this action by asserting that it is in the broader national interest for the people of the entire nation to play a role in the administration of the national capital through the democratically elected central government.
This development came subsequent to a prior Supreme Court decision on May 11, which reinstated control over services to the Delhi government. The Supreme Court had ruled that the Delhi government would exercise authority over all services within the national capital, including the Indian Administrative Service (IAS), except those associated with land, police, and law and order.
In a unanimous verdict, a Constitutional Bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha upheld, “The legislative power of NCT Delhi under Entry 41 would extend to IAS and it shall control them even if they are not recruited by the NCT Delhi. However, it would not extend to the services which comes under land, law and order and police. Lieutenant Governor (LG) shall be bound by the decision of NCT Delhi over services apart from land, police and law and order.