Capital territory amendment bill

Why in News?

On 7 th August 2023, Rajya Sabha passed Government of National Capital Territory of Delhi (Amendment) Bill, 2023.

• The law repeals the ordinance on Capital Service Control, overrides the Supreme Court's (SC) decision in favour of the Elected State Government and provides the Lieutenant Governor (LG) additional authority over Delhi's administration.

Background

• The 2015 Notification added Entry 41 to the list of exceptions under Article 239 AA(3(a)) and granted the LG of Delhi the authority to deal in matters connected with services, public order, police and land in which he can consult the Chief Minister.
  • The notification that the Government of NCT of Delhi cannot make laws for Entry 41 - "Services" as it is outside the purview of the legislative assembly of NCT of Delhi was upheld by The High Court of Delhi in 2016.
  • The Central Government henceforth promulgated The Government of NCT of Delhi (Amendment) Ordinance overruling the Apex Court’s verdict.
  • While the matter was still pending with the Constitution Bench, the bill was tabled in Lok Sabha and approved on 3rd August 2023 and even though opposition collectively called the bill "unconstitutional", it was passed in the Rajya Sabha.

  

  Government of Capital Territory of Delhi (Amendment) Bill, 2023

  • Establishment of NCCSA: The Bill seeks to establish a permanent authority named "National Capital Civil Service Authority" to take decisions with respect to the postings and control of civil servants.
    • NNCSA will consist of the Chief Minister of Delhi (as its head), the Chief Secretary and the Principal Secretary (both from the Government of NCT of Delhi).
    • NCCSA will make recommendations to the LG regarding transfers and postings of all Group 'A' officers serving in the affairs of the Government of NCT of Delhi barring officers handling matters related to public order, land and police.
    • Modification of Section 45D of the Ordinance gives power to the Centre regarding the appointments to statutory commissions and tribunals in Delhi.
      • Section 45D suggests that any authority, board, commission or any statutory body, or any office bearer or member thereof, constituted or appointed by or under any law for the time being in force, in and for the NCT of Delhi, shall be constituted, appointed or nominated by the President.
      • The Legislation passed by the Parliament allows department secretaries to take matters to LG, Chief Minister and Chief Secretary without consulting the concerned minister.

      National Capital Territory of Delhi

      • Article 239AA of the Constitution of India pertains to the NCT of Delhi.
      • The article says that from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the NCT of Delhi.
      • The above-mentioned article also establishes a legislative assembly for NCT of Delhi members of which are elected by the Delhi Electorate.
      • The proviso to Article 239AA says that in case of a difference of opinion between the LG and the ministers, the LG shall refer the matter to the President for a decision.

      Difference Between Ordinance, Bill, Act

      • Ordinance - Ordinances are temporary laws that are circulated by the President of India/ Governer of the state on the recommendation of the Union/State Legislature.
      • Bill – A drafted proposed legislation that is presented in the parliament for discussion.
      • Act – When a bill is passed by the legislature it is sent for the assent of President or the Governer as the case may be. On receiving such assent, it becomes an act.

      Legal Provisions

      Ordinance Making Power of the President

      • Article 123 of the Indian Constitution grants the President of India law making powers.
      • Conditions:
        • The President can only promulgate at a time except when both Houses of Parliament are in session.
        • The President is of the opinion that there are circumstances that require him to take immediate action.
        • While passing an ordinance, the President should be satisfied; that such circumstances exist which require immediate action on part of the President.
        • The same will cease to operate if disapproved by either house of parliament.
        • Whereas in D.C. Wadhwa v. State of Bihar (1987) (which reflected upon the issue of ordinance making power of the governor), the SC opined that when ordinances are frequently issued and re-issued, it violates the spirit of the Constitution and result in an ‘ordinance raj’ and called this practice a constitutional fraud.

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