ORDINANCES - POLITY
News: With
its ordinance, Centre challenges Supreme Court and undermines federalism
What's in the news?
● The
recent judgment of the Supreme Court
holding that the Government of NCT of Delhi has the executive and legislative
control over “administrative services” has ruffled some feathers in the
national capital.
Key takeaways:
● The
effect of the judgment of the Supreme Court has been nullified by the
promulgation of this ordinance.
● This
ordinance has altered the fine balance envisaged in Article 239AA of the Constitution in favour of the Union
government.
Supreme Court Judgement:
● The
Supreme Court held that the executive and legislative powers in relation to “administrative services” under List II
Entry 41 of the Seventh Schedule of the Constitution can be exercised by
the Delhi government since there is no law passed by Parliament conferring such
power on the Lieutenant-Governor (L-G) or the Union government.
Ordinance:
National Capital Civil Service Authority (NCCSA):
● The
judgment was followed up almost immediately by an ordinance that created the
National Capital Civil Service Authority (NCCSA) constituting the Chief
Minister of Delhi, Chief Secretary of Delhi and Principal Home Secretary of
Delhi.
● This
authority has been tasked with the responsibility of recommending transfers,
postings and matters concerning the vigilance of Group ‘A’ officers serving in
the affairs of the Government of National Capital Territory of Delhi.
● The
files regarding transfers, postings, etc of such officers are then placed
before the L-G who shall either give effect to the recommendation or send it
back to the Authority for reconsideration.
Upper hand to L-G:
● If a difference of
opinion crops up between the Authority and the L-G, the decision of the L-G is
said to be final and binding on all.
● Therefore,
the effect of the judgment of the Supreme Court has been nullified by the
promulgation of this ordinance. This ordinance has altered the fine balance
envisaged in Article 239AA of the Constitution in favour of the Union
government.
Go back to basics:
Ordinances:
● Under
Article 123 of the Constitution
(“Power of President to promulgate Ordinances during recess of Parliament”),
“if at any time, except when both Houses of Parliament are in session, the
President is satisfied that circumstances exist which render it necessary for
him to take immediate action, he may promulgate such Ordinances as the
circumstances appear to him to require.”
Advice of Council of Ministers:
● The
President acts on the advice of the Council of Ministers, it is in effect the government that decides to bring the
Ordinance.
● The
President may return the recommendation of the Cabinet once if she feels it
warrants reconsideration; if it is
sent back (with or without reconsideration), she has to promulgate it.
Power of Parliament:
● An
Ordinance “shall have the same force and
effect as an Act of Parliament”.
● The
government is required to bring an Ordinance before Parliament for ratification
and failure to do so will lead to its lapsing “at the expiration of six weeks
from the reassembly of Parliament”.
Lapse of Ordinances:
● The
Ordinance may lapse earlier if the President withdraws it or if both Houses pass resolutions disapproving
it. (Rejection of an Ordinance would, however, imply the government has
lost majority).
● If
an Ordinance makes a law that Parliament is not competent to enact under the
Constitution, it shall be considered void.
Validity of Ordinances:
● An
Ordinance is valid for six weeks, or 42
days, from the date on which the next session starts. If the two Houses
start their sessions on different dates, the later date will be considered, say
the explanations in Articles 123 and 213.
Ordinance in State:
● Article 213
deals with the broadly analogous powers of the Governor to promulgate/ withdraw
an Ordinance when the state legislature is not in session.