The Government of National Capital Territory of Delhi (Amendment) Bill, 2023, is a significant piece of proposed legislation introduced by the Union Government of India. This bill aims to counteract the Supreme Court's decision in the case of Government of NCT of Delhi v. Union of India. Specifically, it seeks to prioritize the role of the Lieutenant Governor (LG) in the transfer and postings of civil servants within the Delhi Government.
In the landmark case of Government of NCT of Delhi v. Union of India, the Supreme Court upheld the legislative and executive powers of the National Capital Territory of Delhi over "services." The court concluded that the Delhi Legislative Assembly possesses authority over subjects listed in List II of the Seventh Schedule of the Constitution, excluding matters of public order, police, and land. Consequently, the elected government of Delhi was given executive control over "services."
In certain situations, the legislative body has the capacity to override judicial decisions. This can be achieved by amending the law to alter its legal framework. For instance, if a court invalidates a decision due to insufficient statutory power, the legislature can amend the law to bestow the necessary authority upon the entity, thus validating the decision retroactively.
Critically, the Bill directly challenges the Supreme Court's verdict by asserting the LG's authority over "services" in "his sole discretion," which conflicts with the Court's ruling in favor of the elected government's control.
Parliament holds the power to pass laws that enhance the LG's authority concerning subjects in List II of the Seventh Schedule. However, such actions must not directly contravene or undermine judicial rulings without appropriate constitutional amendments.
Critics argue that the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, is unconstitutional. They believe it violates the doctrine of separation of powers and jeopardizes democratic and federal principles by directly overruling a Supreme Court judgment without amending its legal foundation.
The Bill significantly impacts the elected government of Delhi by granting the LG primacy in the transfer and postings of civil servants. This undermines the elected government's administrative control, affecting accountability and efficiency.
Some critics label the Bill as colorable legislation, suggesting it negates the Supreme Court's judgment without altering its legal base, thereby presenting a constitutionally impermissible maneuver.
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