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Not just services — Delhi ordinance gives L-G power to form boards & commissions, pick members

Section 45D of GNCTD (Amendment) Ordinance, 2023, gives L-G 'overriding powers' regarding formation of & appointments to commissions established through central Acts, said govt officials.

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New Delhi: The new Government of National Capital Territory of Delhi (GNCTD) (Amendment) Ordinance, 2023, promulgated by the Narendra Modi government last Friday, will not only give the Delhi Lieutenant Governor final say in the transfer and postings of bureaucrats in the Delhi government, but also give him power to decide on the constitution of boards, commissions or “any” statutory body that emanates from a central Act, ThePrint has found.

Senior sources in the Union and Delhi government told ThePrint that the L-G will also have the authority to appoint members to such boards, commissions or statutory bodies.

In the case of commissions that were established by the Delhi government, such as Dialogue and Development Commission of Delhi or the Delhi Commission for Women, the elected government will continue to send its recommendations to appoint members to the L-G, while the latter will not have overriding powers, the government sources said.

Experts and former office bearers are, however, divided over the extent of power vested in the L-G under the GNCTD (Amendment) Ordinance, with some saying that it has bearing even on statutory bodies established through Acts passed in the Delhi Assembly and not just those passed in Parliament.

The GNCTD (Amendment) Ordinance was passed by the Union government days after a Constitution bench of the Supreme Court had noted in a judgment that the Central government’s involvement in the administration of Delhi is limited by the Constitution and any further expansion would be contrary to the constitutional scheme of governance.

The 11 May verdict meant the Aam Aadmi Party-led Delhi government could exercise its executive as well as legislative authority over the officers of various services, including those who are not recruited by it and have been allocated to Delhi by the Union of India. The power would include the authority to transfer and post officers within the government, frame service rules for them or undertake any other measure for governance purposes, including passing a law in the legislative assembly.

The Union government has already sought review of the Constitution bench verdict.

Meanwhile, elaborating on the L-G’s powers under the GNCTD (Amendment) Ordinance, the government sources said, the L-G may, for instance constitute commissions like the Delhi Electricity Regulatory Commission (DERC) and appoint its members. The DERC was established through the Electricity Regulatory Commissions Act, 1998, a central Act.

The L-G’s powers come through Section 45D of the GNCTD (Amendment) Ordinance, 2023, which states: “Notwithstanding anything contained in any other law for the time being in force, any authority, board, commission or any statutory body, by whatever name it may be called, or any office-bearer or member thereof, constituted or appointed by or under any law for the time being in force, in and for the National Capital Territory of Delhi, shall be constituted or appointed or nominated by the President”.

According to government sources, the said section will have a bearing only on bodies that are set up under central Acts, and that while it notes that the President will exercise the power, the latter delegates it to the L-G since he or she is the administrator and represents the Centre.

The sources added that before the Centre’s ordinance, the appointment for members and chairpersons of any commissions/authorities/boards/statutory bodies — excluding land, law and public order — required the L-G to take into account the aid and advice of the elected government. However, after the ordinance, the L-G will have overriding powers regarding the appointment of members and chairperson to commissions that were established through Acts that were, or are, passed in Parliament.

The L-G is likely to also have the final say in the appointment of aldermen (nominated persons) to the Municipal Corporation of Delhi (MCD), one of the Union government sources told ThePrint.

The civic body, which is a statutory body, was established through the Delhi Municipal Corporation Act, 1957. According to the Act, the L-G is required to nominate to the MCD 10 aldermen — not younger than 25 years of age — who have special knowledge or experience in municipal administration.

Earlier this year the AAP government in Delhi moved the Supreme Court against the L-G’s appointment of 10 aldermen to the MCD, alleging that the L-G had bypassed the elected government in the process. The apex court has reserved its judgement in the matter.

In the MCD elections held last year, AAP had won in 134 of 250 wards, while the BJP had won in 104. However, two Independent councillors and one AAP councillor have since joined the BJP.

Also Read: How Delhi L-G’s powers to appoint aldermen to MCD aids BJP, hurts AAP

Ordinance ‘covers everything’

According to government sources, the L-G will not have overriding powers over appointments to commissions that were established by the Delhi government.

While the elected government will continue to send its recommendations to appoint members to the L-G, in case of a difference of opinion the matter will be referred to the President, government sources told ThePrint.

Opinion is, however, divided on this.

According to Anil Gupta, former law officer in the erstwhile North Delhi Municipal Corporation, section 45D of the GNCTD (Amendment) Ordinance, 2023, gives sole decision-making power to the L-G in matters of commissions set up under a Central government Act.

But former Lok Sabha secretary general P.D.T. Achary told ThePrint that Section 45D of the ordinance has a bearing not only on statutory bodies that emanate out of Acts that are passed in Parliament, but even on those that were established through Acts passed in the Delhi Legislative Assembly.

“This ordinance changes everything. Its ostensible purpose was to take away the elected government’s power to decide on services (transfer, postings and work allocation). But in the guise of that, they (Centre) are doing much more,” Achary told ThePrint.

He pointed out that the elected government will lose the power to appoint members or office-bearers to statutory bodies, since it now rests with the L-G.

“The language used in the section does not specify that it has a bearing on statutory bodies that were established only through Acts passed in Parliament. Rather, it covers everything,” said Acharya.

Former Delhi assembly secretary S.K. Sharma told ThePrint that the meaning of the said section is “very clear”, and with the ordinance coming into effect, boards, commissions and statutory bodies will be constituted, and members will be appointed by the L-G.

“But this will apply to bodies that will be constituted from here on,” he added.

(Edited by Nida Fatima Siddiqui)

Also Read: How Delhi L-G’s powers to appoint aldermen to MCD aids BJP, hurts AAP

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