Entry 41 & the tussle for power over 'Services' in Delhi 

When the Indian Constitution was adopted, Delhi was a Part C State and was governed by the Government of Part C States Act, 1951. The Act provided for a Council of Ministers and a legislature for Delhi with the power of making laws on matters enumerated in the State List or the Concurrent List except on subjects that were expressly excluded. The Constitution (Seventh Amendment) Act 1956 introduced States and Union Territories. Union Territories were to be administered by the President through Administrator. In 1962, Article 239A was inserted in the Constitution and provided for the creation of local legislatures or a Council of Ministers or both for certain Union Territories. Article 239A created a separate category of Union Territories since all Union Territories were no longer envisaged to be administered only by the President. The introduction of Article 239A was followed by the Government of Union Territories Act 1963. Union Territory of Puducherry is administered by this enactment. By the Constitution (Sixty-ninth Amendment) Act 1991, Article 239AA was inserted in the Constitution, and National Capital Territory of Delhi (NCTD) became the only Union Territory with the special status of having a constitutionally created Legislature and Council of Ministers. 

Recently, the Constitution Bench of the Supreme Court held that the Legislative Assembly of the National Capital Territory of Delhi (NCTD) has competence over entries in List II and List III except for the expressly excluded entries of List II; the executive power of NCTD is co-extensive with its legislative power; the Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence. The Constitution Bench also held that the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded. The Constitution Bench also held that NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule.  

The Constitution Bench had observed that an unaccountable and non-responsive civil service may pose a serious problem of governance in a democracy. 

A week  after the Constitution Bench of the Supreme Court  decided that NCTD has legislative and executive power over 'Services', that is, Entry 41 of List II of the Seventh Schedule,  the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated  that stated that notwithstanding anything contained in any judgment, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto." The Ordinance also provided for a National Capital Civil Service Authority for matters concerning transfer posting, vigilance, and other incidental matters against Group-A officers having the Delhi Chief Minister as Chairman and the Chief Secretary and Home Secretary as Members. Their recommendations are to be made to the Lt Governor. 

This arrangement, the Ordinance stated 'would balance the local and domestic interests of the people staying in the NCTD with the democratic will of the entire nation reflected through the President of India.'

While the Constitution Bench of the Supreme Court held that 'a constitutionally entrenched and democratically elected government needs to have control over its administration’ and its legislative and executive powers would include Services (Entry 41), the law as it stands today through the Ordinance has kept Entry 41 out of the democratically elected government’s powers.

It is most unlikely that the Ordinance would not be challenged in the Court. There have been political moves by some Opposition Parties to oppose the Ordinance in the Rajya Sabha. Keeping in view Delhi being the National Capital, three subjects under the State List have long been kept out of the legislative domain of the Delhi Assembly. The Constitution Bench had seen great merit in Entry 41 being within the ambit of the Legislature and the elected Government. As of now, this stands stalled. How an elected Government without control over officers would be able to perform well and meet the expectations of the electorate and how the elected Government would also be able to ensure quality performance in the National Capital, a world-class city, needs serious deliberation.

(DISCLAIMER: This is an opinion piece. The views expressed are the author’s own and have nothing to do with OTV’s charter or views. OTV does not assume any responsibility or liability for the same. The author can be reached at lonewalker.1942@gmail.com)