The ordinance attempts to neutralise the Supreme Court’s judgment from earlier this month, in which it had been held that, subject to Article 239AA of the Constitution, the Delhi legislative assembly’s power to make laws extends to all subjects in the State List of the Seventh Schedule of the Constitution.
THE President on Friday promulgated an ordinance taking away the Delhi Legislative Assembly’s power to make laws with respect to the Government of the National Territory of Delhi’s (GNCTD) ‘services’. This occurred merely eight days after a Constitution Bench of the Supreme Court, in a judgment on May 11, had held that the Delhi Legislative Assembly’s power to make laws extends to all subjects in the State List of the Seventh Schedule of the Constitution, except public order, police and land— subjects expressly excluded by Article 239AA of the Constitution.
The ordinance creates a National Capital Service Authority with power to recommend the transfers and postings of certain high ranking civil servants, and will comprise the chief minister, the chief secretary and the principal home secretary of the GNCTD. The authority will recommend names to the lieutenant governor (LG) of Delhi.
Since the latter two members of the authority will be Union government appointees and all matters are to be decided by a majority of votes of the members, this effectively gives the Union government a greater say in the appointment of civil servants.
In a press conference conducted Saturday afternoon, GNCTD Chief Minister Arvind Kejriwal said, “The court shut at 5 p.m. yesterday, and at 10 p.m., they brought in the ordinance reversing the Supreme Court’s verdict… They know in their hearts that the ordinance is totally illegal, unconstitutional and undemocratic. They know if the Supreme Court was open and they had brought in the ordinance … it would not have stood for even five minutes.”
Kejriwal called the ordinance “a direct contempt of the Supreme Court” and stated that the GNCTD will challenge it as soon as the Supreme Court opens after vacation on July 1. It must be noted that division Benches of the court will sit on a rotational basis throughout the vacation.
In a separate development, the Union government moved a review petition at the Supreme Court against its May 11 judgment, contending, among other things, that it ignores the fact that the functioning of the government of the capital “affects the nation as a whole”.
Senior advocate and politician Dr Abhishek Manu Singhvi, who had represented the GNCTD at the Supreme Court, said that the ordinance was drafted by persons “blissfully ignorant of law”. Dr Singhvi added that the Constitution Bench of the Supreme Court had stated that the GNCTD’s civil servants are to be accountable to the elected government, and this cannot be changed by an ordinance. With this ordinance, the answerability of civil servants had been “turned upside down”, he said.
As per the ordinance, the National Capital Civil Service Authority shall have the responsibility to recommend to the LG the transfers and postings of all Group ‘A’ officers, and officers of Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) serving the GNCTD.
The said authority’s powers shall also extend to matters connected with and falling under the subject of vigilance and non-vigilance matters for the purpose of disciplinary proceedings and prosecution sanctions against all the Group ‘A’ officers, including the officers of the All India Services and the DANICS
The ordinance also specifies that the Delhi legislative assembly’s power to make laws shall not extend to Entry 41 (State Public Services; State Public Service Commission) of the State List of the Seventh Schedule of the Constitution or any matter connected therewith or incidental thereto. This shall apply “notwithstanding anything contained in any judgement, order or decree of any Court.”
The above changes have been made by amending the Government of National Capital of Delhi Act, 1991. The amendments have been justified stating that “any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international spectrum.”
It has been further contended that “the national capital belongs to the entire nation and the entire nation is vitally interested in the governance of the national capital.”
However, the ordinance does not satisfactorily address the constitutional requirement of having circumstances which render it necessary for the President to “take immediate action”, as is prescribed under Article 123 of the Constitution.
As per the above provision, an ordinance is to be placed before both Houses of the Parliament within six weeks of its reassembly. The monsoon session of the Parliament is expected to begin in late July or early August.
Supreme Court’s judgment
In its May 11 judgment, the Supreme Court had held that the legislative power of the Delhi Legislative Assembly extends to all subjects contained in the State List except “public order”, “police” and “land”, subjects specifically excluded by Article 239AA. The court had clarified that the executive power of the GNCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate.
The court further held that the legislative and executive power over ‘services’ such as the Indian Administrative Service, or joint cadre services, “which are relevant for the implementation of policies and vision of NCTD in terms of the day-to-day administration of the region”, shall lie with the GNCTD, and officers, though not recruited by it, would still serve under the state government.
In the Constitution Bench’s view, a democratically elected government can perform only when officers know the consequences that may ensue if they do not perform.
“If officers feel that they are insulated from the control of the elected government which they are serving, they become unaccountable or may not show commitment towards their performance,” the court had held, accepting the GNCTD’s argument.
The court had stressed on the principles of democracy and federalism, which form a part of the basic structure of the Constitution. Federalism in a “multi-cultural, multi-religious, multi-ethnic and multi-linguistic country like India” ensures the representation of diverse interests, the court had observed. Recognising regional aspirations “strengthens the unity of the country and embodies the spirit of democracy”, it had added.
In any federal Constitution, two sets of government operate: one at the national level and the second at the regional level. The court had called this “a dual manifestation of the public will”.