Key clauses of the Delhi services bill explained

The Delhi services bill, which has now cleared both houses of Parliament, represents a significant shift for governance in the national capital. The Government of National Capital Territory of Delhi Act, 2023, as it is officially known, once it becomes law, will redefine the roles of the elected government, the lieutenant governor (L-G) and the state’s administrative machinery. Effectively resetting a May 11 Supreme Court judgment that rested control of the services with the elected government, the bill also hands more powers to Delhi’s bureaucrats. Here’s a look at the key provisions of the bill and the impact they are expected to have.

Section 4: Inserts Part IVA in the Government of National Capital Territory of Delhi Act, namely ‘Provisions relating to the maintenance of the democratic and administrative balance in the governance of National Capital territory of Delhi’.

ANALYSIS: In a move perceived as nullifying the Constitution bench judgment of May 11, a whole new chapter has been introduced in the GNCTD Act, 1991, to create an authority and a public service commission for transfers and postings of the officers serving in the affairs of the Delhi government.

Section 45-C in the 1991 Act: The Central Government may make rules to provide for transfer or posting of officers, tenure of office, salaries and allowances, powers, duties and functions of officers posted in connection with the affairs of the Government of National Capital Territory of Delhi under Part IVA.

ANALYSIS: This provision empowers the central government to make rules in connection with the affairs of Delhi, including the functions, terms and other conditions of service of officers and employees, and all other rules considered expedient to achieve the objective of the bill. The rules made by the Centre under this Part shall be laid before each House of Parliament for modification and validation.

Section 45-D: Appointments of chairperson and members of any authority, board, commission or any other statutory body shall be made by the President if such body operates under a central law. For the other bodies functioning under the laws framed by Delhi assembly, the National Capital Civil Service Authority (NCCSA) will send the recommendations to LG, who will have the final say.

ANALYSIS: The provision saw a change from how it was framed in the ordinance. The ordinance had laid down that the President will appoint the chairperson and members of any authority, board, commission or any statutory body functioning in Delhi. The bill, however, divides this power between the President and L-G on the basis of the legislation under which a body is constituted. In turn, it strengthens the hands of L-G yet again, making him the final authority in deciding on appointments of chairpersons and members of bodies such as DERC and DJB.

Section 45-E (1):There shall be an Authority to be known as the National Capital Civil Service Authority (NCCSA) to exercise the powers conferred on, and discharge the functions assigned to it under this Part. It shall be headed by the Delhi chief minister and will comprise the chief secretary and the principal home secretary.

ANALYSIS: The provision establishes a three-member NCCSA, to be headed by the Delhi CM and two officials who report to LG --- to make recommendations to LG regarding matters concerning transfer, postings, vigilance and other matters.

Section 45-H (1): Notwithstanding anything contained in any other law for the time being in force, the Authority shall have the responsibility to recommend the transfers and postings of all Group ‘A’ officers and officers of DANICS serving in the affairs of the Delhi government but not officers serving in connection with any subject matter, either fully or in part, connected with Entries 1, 2 and 18 of List II of the Seventh Schedule to the Constitution; and Entries 64, 65 and 66 of List II of the Seventh Schedule

ANALYSIS: NCCSA can make recommendations relating to transfer and postings of Group A officers (who belong to All India Services or are so classified under the Central Civil Services Rules) and officers of DANICS (Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services), serving in the Capital. The Authority, however, is barred from making any recommendation regarding officers serving in Delhi in connection with public order (Entry 1), police (Entry 2) and land (Entry 18). Also, matters relating to court fees and jurisdiction and powers of courts in the Capital have been kept out of the purview of NCCSA.

Section 45-H (2):The Authority shall have the responsibility to recommend for all matters connected with and falling under the subject of vigilance and non-vigilance matters for the purpose of initiation of disciplinary proceedings and recommend for grant of prosecution sanctions

ANALYSIS: NCCSA will also be the body to recommend disciplinary actions against the officers serving in the affairs of Delhi. It will be the competent authority under the law to approve of sanction to prosecute the officials under penal laws.

Proviso to Section 45:Provided further that in case the Lieutenant Governor differs with the recommendation made, whether based upon the material so called for or otherwise, the Lieutenant Governor may, for reasons to be recorded in writing, return the recommendation to the Authority for reconsideration by the Authority...Provided also that in case of difference of opinion, the decision of the Lieutenant Governor shall be final

ANALYSIS: The two provisos to the main section make it unequivocally clear that the power of NCCSA shall confine to making recommendations on subjects within its jurisdiction while L-G will have the final say. L-G can send a recommendation back for a review by NCCSA and if the Authority chooses to send the same recommendation again, the writ of L-G will lie. In every instance of a difference of opinion, L-G’s decision will be the final one.

SECTION 45-I (4):Any matter which is likely to disturb the peace and tranquility of Delhi, or affect the interest of any particular community, or bring the Government of National Capital Territory of Delhi into a controversy with the central government or with any other state government, the Supreme Court of India or the High Court of Delhi and such other authorities as may be determined, the secretary to the department concerned shall, as soon as possible, bring it to the notice of the Lieutenant Governor, the chief minister and the chief secretary in writing.

ANALYSIS: This section authorises the bureaucrats heading different departments of the Delhi government to keep a vigil on the proposals, policies, decisions and other issues that, in the officer’s opinion, may bring the relationship between the elected government in Delhi and the Centre to a head or disrupt peace in the Capital. The secretary concerned, according to this provision, must inform L-G, CM and Delhi’s chief secretary of the contentious issues.

SECTION 45-J (3):In case the secretary to the council of ministers is of the opinion that the proposal considered and decided by the council of ministers is not in accordance with the provisions of any law for the time being in force or any rules of procedure, it shall be the duty of the secretary to the council of ministers to bring it to the notice of the Lieutenant Governor for taking a decision thereon.

ANALYSIS: The amendment obligates the secretary to bring to the notice of L-G any decision taken by the elected government in Delhi if such a decision, in the opinion of the concerned bureaucrat, exceeds the authority vested with the government or violates any other law.