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Understanding the National Capital Territory of Delhi



  Aug 09, 2023

National Capital Territory of Delhi (Amendment) Bill, 2023:Contents and Constitutionality


Q: What is the Government of National Capital Territory of Delhi (Amendment) Bill, 2023?

A: The Government of National Capital Territory of Delhi (Amendment) Bill, 2023, is a proposed legislation introduced by the Union Government of India to nullify the effect of the Supreme Court's judgment in Government of NCT of Delhi v. Union of India. The bill seeks to give primacy to the Lieutenant Governor (LG) in matters related to the transfer and postings of civil servants serving the Delhi Government.
 

Q: What was the Supreme Court's judgment in the Government of NCT of Delhi v. Union of India case?

A: The Supreme Court's judgment in the case recognized the legislative and executive powers of the National Capital Territory of Delhi (NCTD) over "services." It held that the Delhi Legislative Assembly has powers over all subjects in List II of the Seventh Schedule of the Constitution, except matters relating to public order, police, and land. Consequently, the elected government of Delhi has executive powers over "services."
 

Q: Is legislative overriding of judgments permissible in India?

A: Yes, legislative overriding of judgments is permissible in certain circumstances. The legislature can neutralize the effect of a judgment by amending the law to alter its legal basis. For example, if a court has struck down a decision taken by an authority due to a lack of statutory power, the legislature can amend the law to confer the requisite power on the authority and validate the decision retrospectively.
 

Q: Is the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, overruling the Supreme Court's judgment?

A: Yes, the Bill seeks to directly overrule the Supreme Court's judgment without amending the legal basis of the judgment. It asserts the LG's power in "his sole discretion" over "services," which contradicts the Court's ruling that the elected government should have control over these matters.
 

Q: Can the Parliament enact a law to enhance the powers of the Lieutenant Governor?

A: Yes, the Parliament can pass a law to enhance the powers of the Lieutenant Governor with respect to matters in List II of the Seventh Schedule of the Constitution. However, the exercise of such power must not directly overrule or undermine a judicial decision without amending the Constitution or the legal basis of the judgment.
 

Q: Why do critics argue that the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, is unconstitutional?

A: Critics argue that the Bill is unconstitutional because it directly overrules the Supreme Court's judgment without amending the legal basis of the judgment. It breaches the doctrine of separation of powers and undermines the principles of democracy and federalism.
 

Q: How does the Bill affect the elected government of Delhi?

A: The Bill gives the LG primacy in transfer and postings of civil servants serving the Delhi Government. This undermines the elected government's control over its administration and compromises the principles of accountability and efficiency.
 

Q: Is the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, a colorable legislation?

A: Yes, some argue that the Bill is a colorable legislation as it seeks to negate the Supreme Court's judgment without changing its legal basis. It does not have the effect of taking away the basis of the judgment, which is constitutionally impermissible.


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