Addressing the Constitutional vires of the Delhi Services Act, 2023: A critical analysis

On May 11, 2023 in the case of Government of NCT of Delhi v. Union of India, the Supreme Court invalidated a 2015 notification issued by the Union government that prevented the Legislative Assembly and Government of the National Capital Territory of Delhi (GNCTD) from exercising control over ‘services’ under Entry 41, List II of Schedule VII of the Constitution. 

The Court's ruling was based on its interpretation of Article 239AA(3)(a) of the Constitution, which explicitly granted primary control over administrative services to the Legislative Assembly and GNCTD within its jurisdiction. Further, the Court justified its ruling by emphasizing the inherent connection between government accountability and the principle of collective responsibility, as outlined in Part XIV of the Constitution. Part XIV specifically deals with administrative and civil services in the Union, States and Union Territories (UTs). The Supreme Court elaborated that civil servants should be held accountable to the GNCTD Ministers, who in turn are answerable to the Delhi Assembly, which is ultimately accountable to the electorate. This chain of accountability plays a pivotal role in ensuring the effective functioning of the principle of representative democracy, as expressed in Article 239AA.

In an anticipated move, the Centre, through the Government of National Capital Territory of Delhi (Amendment) Act, 2023, effectively overruled and nullified the Supreme Court’s verdict.

Firstly, it deprived the GNCTD the exercise of any control over services, which has been added to the already existing list of exclusions (land, law and order and police), where GNCTD lacks legislative and executive power to exercise. Secondly, it created a special body known as National Capital Civil Services Authority (NCCSA), a three-member body headed by the Chief Minister of GNCTD. This Authority might have negligible control in the appointment, transfers, suspension and postings of civil servants working in GNCTD departments, as any decision related to the services shall be passed with a majority, meaning thereby that the Union’s appointed members - the Chief Secretary and Principal Secretary (Home) of GNCTD - would have primary control over the services and can sideline the recommendations and objections of the elected CM.

Thirdly, the Bill diluted the authority and power of the elected Cabinet of the GNCTD by vesting power in the bureaucrats to test the legality of the decision taken or order/directions passed by the Cabinet. Fourthly, the Bill is a colourable exercise of legislative power to make the Constitution Bench decision ineffective.

The aforesaid amendments introduced through the Delhi Services Ordinance, and now the Act, not only countermand the Supreme Court's 2023 and 2018 rulings, but also fail the test of constitutionality, as elaborated below.

Disregards Constitutional Morality

Constitutional morality refers to the practice of upholding the fundamental principles of the Constitution within a democratic system. It was further explained by the Supreme Court in a 2018 judgment as:

“... that fulcrum which acts as an essential check upon the high functionaries and citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the very idea of democracy.”

Dr BR Ambedkar, while speaking on constitutional morality in the Constituent Assembly, stressed on its necessity for peaceful working of a democratic nation. Ambedkar meant that constitutional morality would be disregarded where the form of the administration is not in sync with the Constitution, and it would be an act of perversity to the Constitution if without changing the form of the Constitution, the form of the administration is changed.

The Bill has effectively stripped the Government of Delhi of its authority over "services" without any clear justification. In turn, it has granted unrestricted power to the Government of India, diminishing the role of the Chief Minister and Council of Ministers of Delhi to a mere formality rather than active decision-makers.

Suffers from manifest arbitrariness

The rationale behind promulgating an Ordinance, and now an Act, as stated by the Union, is to balance the power imbalance existing in the NCT of Delhi. In other words, the Union wants to “balance” the interests of the elected government of Delhi with national interests in the national capital. However, it is worthwhile to mention that Article 239AA of the Constitution draws out two ways to sufficiently recognize the power balance in the legislative domain. Firstly, it deprives the GNCTD executive and legislative control over three entries of List II (land, police, law and order). Secondly, it preserves the executive and legislative control of the GNCTD over all other entries, and authorizes the Parliament to make laws in the same list. The reason behind this is evident: Parliament's jurisdiction is maintained as it may not be feasible to anticipate every potential scenario that could emerge under any other category, which could directly affect national interests in the capital city. 

Moreover, the Act lacks the determining principle as there lacks a plausible reason for validating such wholesale transfer of power from the elected government to the Centre-appointed nominee. It is difficult to understand what national interest is going to be achieved by depriving the control of GNCTD over services. Thus, in the absence of any determining principle, the Act suffers from the vires of manifest arbitrariness and can be struck down by the Court.

Breaches the Doctrine of Implied Limitation

It was clarified by the Supreme Court in its 2018 judgment that the GNCTD would have legislative power to make laws for all other entries enshrined in the State List and the Concurrent List, except land, police, law and order. This essentially meant that the GNCTD assembly has complete authority to exercise its power to makes laws related to Entry 41 (services), and Parliament’s power to step into the legislative domain of the GNCTD is only to preserve the national interests in the NCT. Thus, it places an “implied limitation” over the Union’s power to exercise any control over services.

In the 2023 judgment, the Supreme Court relied on the constitutional principles of asymmetric federalism and the concept of the "triple chain of accountability" in representative democracy to shape its interpretation of Article 239AA and Entry 41, List II. Through this interpretative approach, the Court bolsters the concept of asymmetric federalism, where it meant that in a diverse and heterogenous country, different federal units can have different forms of relationship with the Centre. And Delhi, having a sui generis status, the sovereign powers of the NCT in its domain needs to be respected, in order to restrict the centralising drift of the Indian Constitution.

Moreover, the Court viewed that if the Delhi Assembly is denuded of power over Entry 41, List II, then it would sever the principle of triple chain of accountability, as civil servants would undermine the will of the elected government, and would not be answerable to the electorate. 

A plain reading of Article 239AA(3)(a) of the Constitution reserves the power of the Delhi Assembly over services, although Parliament has the power to make laws under Entry 41 in a special situation to preserve the national interest in the capital. Hence, Parliament should not interfere in the day-to-day transactions of the elected government of Delhi, but only to preserve national interest. Through this mechanism, the constitutional principles can be reconciled.

A colourable piece of legislation

The Bill effectively took away control of GNCTD over services. The question is whether it could be possible to amend the Constitution through the legislative route? It is important to raise this question because what the Act does is that through a legislation, it adds another field (services) to the existing list of exclusions. In simple terms, the Bill aims to achieve what Article 239AA explicitly prevents it from doing through regular legislative processes. It is important to reiterate that the Bill is not a law passed "regarding any matter under Entry 41" (as stated in Article 239AA). Instead, it is a law that diminishes the Delhi Assembly's authority to enact legislation pertaining to Entry 41.

Parliament has the power to nullify the operation of a judgment, if the legal basis of the judgment is altered (when the defect in the law is cured). However, in the instant case, the legal basis of the judgment being Article 239AA(3)(a), stands unchanged in the Constitution, and remains intact as it appears before the promulgation of the Ordinance and passing of the Act. The Act doesn’t amend Article 239AA(3)(a) to exempt services from the legislative domain of the GNCTD. Thus, it can’t be said that the Act has taken away the legal basis of the judgment.

In other words, the Act is an impermissible exercise, as it makes the Constitution Bench judgment ineffective without altering the legal basis of the judgment, and is, therefore, liable to be struck down as unconstitutional.

The Bill is nothing but a colourable piece of legislation which indirectly imposes direct control of the Union over the NCT by ignoring the precedents set by the apex court in its 2018 and 2023 ruling which ruled in favour of the elected government. In those verdicts, the arguments made by the Union were rejected on the ground that if the elected government of the NCT would not have control over services, then it would insulate the civil services from the authority and control of the elected government. This in turn would result in the erosion of the essential features of the Constitution such as primacy of the elected government, triple chain of accountability and asymmetric federalism.

The most appropriate way to foster the harmonious and constructive relationship between the Union and GNCTD would be that the former shouldn’t interfere in the day-to-day business of the elected government. It should only exercise the power to legislate over Entry 41 when there exists a repugnancy between the law passed by the Delhi Assembly and Parliament. In this manner, the concerns of the Union regarding the national capital, along with the interests of the Government of NCTD as a 'representative form of government', will be equitably protected and upheld.

Yash Mittal is an Assistant Professor (Law) at the ITM University, Gwalior. He can be reached at mittalyash401@gmail.com