Justice Gogoi responded to the arguments that the Government of NCT of Delhi (Amendment) Bill, 2023 violates the basic structure of the Indian Constitution. He asserted that the doctrine of basic structure has a highly debatable legal foundation.
The Rajya Sabha passed the Government of NCT of Delhi (Amendment) Bill, 2023 on Monday, which supersedes the Delhi Services Ordinance issued by the President of India on May 19. Due to technical issues with the Automatic Vote Recorder, voting for the bill’s passage was conducted using slips. The bill received 131 votes in favor and 102 votes against in the Rajya Sabha, after having been passed by the Lok Sabha on August 3 through a voice vote.
During the discussion in the Rajya Sabha, former Chief Justice of India (CJI) and nominated Rajya Sabha MP Ranjan Gogoi clarified that the bill does not exceed the Supreme Court’s ruling on services in Delhi. According to Article 239AA(3)(b) of the Indian Constitution, Parliament has the authority to frame laws on State subjects in Delhi, with the exception of three subjects. Justice Gogoi emphasized that the bill seeks to accomplish precisely that, and there is no question of overreach.
Furthermore, Justice Gogoi pointed out that the bill could potentially contravene Article 14’s fundamental right on the basis of arbitrariness. However, he also stated that the law does not seem to be arbitrary in nature. To support his stance, he referred to a book by former Solicitor General of India (SGI) TR Andhyarujina on the Kesavananda Bharati case, asserting that the doctrine of basic structure has a highly questionable jurisprudential basis.
Justice Gogoi concluded his address by noting that Article 239AA was not under challenge before the Supreme Court, indicating that the bill is entirely legitimate and viable. He emphasized that what is permitted by law may not always be deemed correct, but those who disagree must retain the freedom to express their dissent.
The Government of National Capital Territory of Delhi (Amendment) Ordinance was initially enacted to amend the Government of National Capital Territory of Delhi Act of 1991, granting the Lieutenant Governor (LG) of Delhi veto power over the transfer, posting, and supervision of officers in Delhi. The ordinance aimed to ensure the participation of all citizens in the democratically elected Central government’s administration of the national capital.
On a prior occasion, the Supreme Court had reinstated the Delhi government’s authority over services, granting control over all services in the national capital, including the Indian Administrative Service (IAS), except for land, police, and law and order-related services.
The decision was unanimously made by a Constitution Bench consisting of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha. The ruling specified that the legislative authority of NCT Delhi under Entry 41 would extend to IAS and the Delhi government would exercise control over them, even if they were not recruited by NCT Delhi.
However, it would not include services related to land, law and order, or police, and the Lieutenant Governor (LG) would be bound by the decisions of the National Capital Territory of Delhi concerning services, except for land, police, and law enforcement matters.
