DELHI ORDINANCE – POLITY

DELHI ORDINANCE – POLITY

News: Delhi ordinance is an unabashed power- grab

 

What is in the news?

●       Recently, the Union government promulgated an ordinance to amend the Government of National Capital Territory.

 

Key takeaways from the news:

●       Delhi (NCTD) Act, 1991 that effectively nullified the Supreme Court judgment of May 11 on the powers over bureaucratic appointments in Delhi.

●       After an eight-year long protracted legal battle, a five-judge Constitution Bench led by the Chief Justice of India D.Y. Chandrachud had unanimously held that the elected government of Delhi had legislative and administrative powers over "services".

●       The ordinance removes Entry 41 (services) of the State List from the Delhi government's control and creates the National Capital Civil Services Authority, consisting of the Chief Minister, Chief Secretary and Principal Secretary-Home, to decide on service matters in Delhi.

●       Decisions of the Authority will be made through majority voting, which means that two Union-appointed bureaucrats could overrule the Chief Minister.

 

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023:

Key features:

●       The Ordinance amends the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. It removes services from the legislative competence of the Delhi legislative assembly.

           

●       It establishes the National Capital Civil Services Authority, which consists of the Chief Minister, Chief Secretary of Delhi, Principal Home Secretary of Delhi.  The Authority will make recommendations to the Lieutenant Governor (LG) regarding transfers and postings of officials and disciplinary matters.

           

●       The Ordinance empowers the LG to exercise his sole discretion on several matters including those related to National Capital Civil Services Authority, and the summoning, prorogation and dissolution of the Delhi Legislative Assembly.

 

10 key points from the Supreme Court’s verdict on Delhi government vs Lieutenant Governor tussle on control over ‘services’

 

The Supreme Court ruled in favour of the Delhi government on the issue of who controls the bureaucracy in the national capital. A five-judge bench headed by Chief Justice of India DY Chandrachud held that the legislature has control over bureaucrats in administration of services, except in areas outside the legislative powers of the National Capital Territory (NCT).

 

What SC said

The Supreme Court unanimously held that the legislature has control over bureaucrats in administration of services

 

What's at the center of the dispute?

At the center of the dispute is the question of the regulation of services. This comes nearly five years after another Constitution Bench of the court had ruled in favour of the Aam Aadmi Party-led state government in a similar tussle.

 

Don't agree with Justice Bhushan's judgment'

Delivering its verdict on the matter, the Supreme Court held that it was unable to agree with Justice Ashok Bhushan's judgment that Delhi govt has no power at all over services.

 

Article 239A establishes legislative assembly for NCT'

The Supreme Court says: "Article 239A establishes legislative assembly for National Capital Territory of Delhi. Members of the legislative assembly are elected by Delhi electorate. Art 239A must be interpreted so as to further the representative democracy."

 

Limits of power

But the court said control over services would not extend to entries related to public order, police and land.

 

Delhi govt represents representative form of govt

According to the apex court, the Delhi government, much like other States, represents the representative form of government and any further expansion of the Union's power will be contrary to the Constitutional scheme.

 

If administrative services excluded, ministers would be excluded from controlling civil servants'

Further the court held that if administrative services are excluded from the legislative and executive domains, the ministers would be excluded from controlling the civil servants who are to implement the executive decisions.

 

Executive power subject to existing law

It clarified that the executive power of the State will be subject to the law existing of the union.

 

SC on principle of collective responsibility

The apex court pointed out that if officers stop reporting to ministers or do not follow their instructions, the principle of collective responsibility will be affected.

 

CJI on principle of triple chain of accountability

Chief Justice of India DY Chandrachud says: "If a democratically elected government is not given the power to control the officers, the principle of triple chain of accountability will be redundant.”

 

 

What is article 239AA?

  1. Article 239AA was inserted in the Constitution by the 69th Amendment Act 1991.
  2. The Article provides for a special status to the National Capital Territory of Delhi (NCT).
  3. The article states that the NCT shall have a Legislative Assembly and a Council of Ministers headed by a Chief Minister.
  4. The Legislative Assembly shall have the power to make laws on all matters in the State List and the Concurrent List, except land, police, law & order.
  5. The Council of Ministers shall be responsible to the Legislative Assembly.

 

Issues with the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023:

1. Can a ordinance amend the constitutional provisions:

The Ordinance excludes “Services” from the purview of the Delhi Assembly.  The question is whether such a change can be made without a Constitutional Amendment under Article 368.

2. Break the triple chain of accountability:

●       Taking “Services” outside the purview of the Legislative Assembly may break the triple chain of accountability that links the civil services, ministers, the legislature and citizens. 

●       This may violate the principle of parliamentary democracy, which is a part of the basic structure doctrine.

3. Discretion of the Lieutenant governor:

●       The LG has been granted sole discretion in several matters including when the Legislative Assembly will convene.  This implies that the Chief Minister may be unable to convene a session needed for essential government business.

4. Nullify the Supreme Court's verdict:

●       The ordinance aims to nullify the Supreme Court's verdict and strengthen the role of the Lieutenant Governor (LG) in the administration of Delhi.

 

5. Un-democratic:

●       As it gives the LG more power than the elected representatives of the people of Delhi. The ordinance tends to undermine the powers of the elected government of Delhi.

6. Bureaucracy over the elected representative:

●       The NCCSA (National Capital Civil Services Authority) will make “recommendations” to the LG regarding “transfer posting, vigilance and other incidental matters.” Notably, all matters required to be decided by the body shall be decided by “majority of votes of the members present and voting.” This means, that in effect, the decision of the elected chief minister of Delhi can be overruled by the two senior bureaucrats.

7. Veto power to Lieutenant Governor:

●       In case the LG differs with the recommendation made, they would be empowered to “return the recommendation to the Authority for reconsideration” and, in case of continuing difference of opinion, “the decision of the Lieutenant Governor shall be final.”

 

Central government justified the ordinance in its affidavit:

 

1. The Centre argued that since no Union Territory has power over services, Delhi too could not exercise such power. Essentially, Delhi could only legislate on issues that other Union Territories are explicitly allowed to legislate upon.

    1. “The legislative power of Delhi will extend to an entry only when that entry is clearly and unequivocally applicable to union territories as a class. Consequently, the list II (state list) has to be read contextually and certain entries can be excluded from the domain of GNCTD,” the Centre argued.

2. Article 239AA specifically excludes land, police and public order from the purview of the legislative powers of the Delhi government. The court acknowledged that these three issues can also have some overlap with “services”.

3. Anarchy” and “administrative chaos” in the national capital led the Union government to urgently promulgate an ordinance wresting the control over bureaucrats from the elected Delhi government, the Centre told the Supreme Court

a.       The elected government remained arrogant to the official duties of the concerned officers and handled the whole affair in a highly insensitive manner. Such actions in the capital of the nation itself were not only not in conformity with the constitutional provisions, effective model governance, democratic norms but were also reflecting before the global community as immature and undemocratic acts virtually paralyzing the nation’s capital resulting in anarchy,” the Centre said in its affidavit.

 

CONCLUSION:

●       An Ordinance is not beyond judicial review of the apex court.

●       If the 2023 Ordinance is challenged separately, the Union would have to prove the extraordinary or emergent situation, which necessitated it to promulgate an Ordinance merely days after a Constitution Bench settled the law.