Rajya Sabha passes GNCTD (Amendment) Bill, 2023; Justice Ranjan Gogoi supports bill, questions correctness of basic structure doctrine

The Rajya Sabha on Monday passed the Government of NCT of Delhi (Amendment) Bill, 2023 to replace the Delhi Services Ordinance promulgated by the President of India on May 19..As a result of technical issues with the Automatic Vote Recorder, Members of the Rajya Sabha were required to cast their votes for the passage of the bill using slips.131 MPs voted in favour of the passage of the bill while 102 MPs voted against it.The Lok Sabha had already passed the bill through voice-vote on August 3. Notably, during the discussion on the Bill in Rajya Sabha, former Chief Justice of India (CJI) and nominated Rajya Sabha MP Ranjan Gogoi said that the Bill does not overreach the Supreme Court judgement on services in Delhi given that Article 239AA(3)(b) of the Indian Constitution gives the parliament the power to frame laws on State subjects in Delhi except three subjects."The position in my perception is this - the State legislature makes laws for the States, the Parliament makes laws for the UTs. For NCT of Delhi, the legislature makes laws on State subjects except three. By virtue of 239AA(3)(b), Parliament has the power to frame laws beyond these three. That is exactly what the Bill is seeking to to. Therefore, there is no question of overreaching," Justice Gogoi said..Further, Justice Gogoi stated that the law could only perhaps violate the fundamental right to Article 14 on the ground of arbitrariness though he added that the law does not appear to be arbitrary, according to him.Interestingly, addressing concerns that the Bill violates the basic structure of the Constitution, Gogoi referred to a book by former Solicitor General of India (SGI) TR Andhyarujina on the Kesavananda Bharati case to assert that the doctrine of basic structure has a very debatable jurisprudential basis."Does it violate the basic features of the Constitution? There is a book by Mr (TR) Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of basic structure of the Indian Constitution has a very debatable jurisprudential basis," Justice Gogoi stated.Justice Gogoi ended his maiden speech in parliament by underlining that Article 239AA was not under challenge before the Supreme Court. Therefore, he contended that the bill was perfectly, legitimately valid."What is permissible need not necessarily be right. To me, the Bill is right but if someone disagrees, his conscience must be left free," he added..The ordinance, titled the Government of National Capital Territory of Delhi (Amendment) Ordinance, was promulgated to amend the 1991 Government of National Capital Territory of Delhi Act to give overriding powers to the Lieutenant Governor (LG) of Delhi when it comes to transfer, posting and control over officers in Delhi..The ordinance stated that it is in the larger national interest that the people of the entire country have some role in the administration of the national capital through the democratically elected Central government.This move came after the Supreme Court had earlier restored power over the services to the Delhi government on May 11.The apex court had held that the Delhi government would have control over all services in the national capital, including the Indian Administrative Service (IAS), except those pertaining to land, police and law and order.In a unanimous judgment, a Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha had held,"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."