The Central Government, on 19 May 2023, promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, just eight days after the Supreme Court's Constitution Bench judgment had ruled that the elected Delhi government controls administrative services. The Ordinance creates a National Capital Civil Service Authority and effectively transfers control over transfers, postings, and disciplinary matters of civil servants from the Delhi government to a body where Centre-appointed bureaucrats hold a majority.
Background
On 11 May 2023, a five-judge Constitution Bench of the Supreme Court unanimously held in Government of NCT of Delhi v. Union of India that the Delhi government has legislative and executive control over services, with the Lieutenant Governor's discretionary powers limited to public order, police, and land. The judgment was seen as a decisive resolution of the long-standing governance dispute between the Aam Aadmi Party-led Delhi government and the Centre.
The Centre responded by invoking the President's ordinance-making power under Article 123 of the Constitution, which permits the promulgation of ordinances when Parliament is not in session and circumstances require immediate legislative action. The speed of the legislative response — within eight days of the Supreme Court verdict — drew significant attention regarding the separation of powers.
Key Provisions
The Ordinance introduced the following changes to the Government of National Capital Territory of Delhi Act, 1991:
National Capital Civil Service Authority: A new body comprising the Chief Minister (as Chairperson), the Chief Secretary, and the Principal Home Secretary of Delhi was established. Decisions of the Authority are to be taken by majority, meaning the two bureaucrats — who are appointed by the Centre — can outvote the Chief Minister on all matters relating to services.
Services removed from Delhi Assembly's competence: The Delhi Legislative Assembly's power to legislate on "services" — including appointments, transfers, postings, and disciplinary matters of officers — was explicitly excluded.
Enhanced LG discretionary power: The Lieutenant Governor's discretion was expanded to cover matters pertaining to the National Capital Civil Service Authority, and the summoning, prorogation, and dissolution of the Delhi Legislative Assembly.
Authority's recommendations to LG: The Authority is empowered to make recommendations to the Lieutenant Governor regarding transfers, postings, and disciplinary matters. The LG's decision on such recommendations is final.
Implications for Practitioners
This Ordinance raises fundamental constitutional questions about the limits of legislative responses to Supreme Court constitutional interpretations. The core issue is whether Parliament can, through ordinary legislation (or an ordinance subsequently converted to legislation), effectively nullify a Constitution Bench's interpretation of a constitutional provision — here, Article 239AA.
Constitutional law practitioners should note that the Ordinance was subsequently replaced by the Government of NCT of Delhi (Amendment) Act, 2023, which received Presidential assent in August 2023 with retrospective effect from 19 May 2023. A constitutional challenge to this Act has been filed before the Supreme Court, raising the question of whether the Act is colourable legislation designed to circumvent the Court's constitutional interpretation.
The structural design of the National Capital Civil Service Authority — with a 2-1 majority of Centre-appointed bureaucrats over the elected Chief Minister — effectively recreates the pre-judgment status quo through institutional architecture rather than direct defiance. Administrative law practitioners advising Delhi government departments should assume that services remain under de facto Central control pending resolution of the constitutional challenge.