The legality of the Delhi Ordinance

The Ordinance promulgated by the President on May 19 took away the services from the jurisdiction of the Delhi government. However, the Supreme Court has held in a large number of cases that since Parliament does not possess judicial powers, it cannot negate the decision of the Court 

July 03, 2023 10:46 pm | Updated 10:46 pm IST

Delhi Lieutenant Governor Vinai Kumar Saxena and Chief Minister Arvind Kejriwal during the inauguration of the East Campus of Guru Gobind Singh Indraprastha University in New Delhi on June 8.

Delhi Lieutenant Governor Vinai Kumar Saxena and Chief Minister Arvind Kejriwal during the inauguration of the East Campus of Guru Gobind Singh Indraprastha University in New Delhi on June 8. | Photo Credit: ANI

The Ordinance promulgated by the President on May 19, 2023 amending the Government of National Capital Territory of Delhi Act 1991(GNCTD Act) took away the services from the jurisdiction of the Delhi government. The services had been earlier restored to the Delhi government by the Supreme Court in a landmark judgment delivered on May 11, 2023. The Ordinance nullifies that judgment of the Supreme Court. The Court had found that if a government does not have control over its officers it would paralyse governance which cannot be the intention of the Constitution makers while incorporating Article 239AA, which gives a special constitutional status to Delhi. So the Court held that “legislative and executive power over services such as the Indian Administrative Services or Joint Cadre Services which are relevant for the implementation of policies and vision of NCTD [National Capital Territory of Delhi] in terms of day-to-day administration of the region shall lie with the NCTD.”

The validity of the Ordinance

The Ordinance which has nullified the court’s decision raises serious legal and constitutional questions. The first question which arises is whether an Ordinance promulgated by the President or a Bill passed by Parliament can nullify the Court’s decision. The Supreme Court has held in a large number of cases that since Parliament does not possess judicial powers, it cannot negate the decision of the Court without changing the basis of that decision. The Ordinance does not furnish any ground for nullifying the Court’s decision.

The Supreme Court based its decision to bring the services within the jurisdiction of the Delhi Assembly and the government on the constitutional mandate contained in Article 239AA (3)(a) which states that Delhi’s Legislative Assembly shall have the power to make laws with respect to any of the matters enumerated in the State list or the concurrent list except the three excluded items such as police, public order and land. Since the executive power is co-extensive with the legislative power the Government of NCTD gets all the powers to deal with the services. This position was affirmed by the Constitution Bench in 2018 and is now reaffirmed by another Constitution Bench of the Supreme Court in its latest judgment.

Now, the law declared by the Supreme Court is sought to be negated by this Ordinance in the following ways — Section 3A of the new GNCTD Act (inserted through the Ordinance) says that notwithstanding anything contained in any judgment of any court, the Legislative Assembly shall not have the power to make laws with respect to any matter enumerated in entry 41 which means services. These words clearly indicate that this section seeks to nullify the judgment of the Supreme Court. No authority is empowered to direct anyone that an order of the Court shall have no effect and shall not be followed. And since the Ordinance does not cite any new ground for nullifying the judgment, it becomes legally unsustainable.

Overriding the Chief Minister

After taking away the services from the Delhi government, the Ordinance confers the powers of posting, transfer and disciplinary matters on an authority named the National Capital Civil Services Authority consisting of a chairman and two members. The Chief Minister is made the chairman and the Chief Secretary and the Home Secretary are the other members. With two members constituting the quorum and the fact that the two members can take all decisions makes the purpose of constituting this authority all too obvious. The highfalutin name of the authority and the Chief Minister being the chairman cannot hide the real object of this provision. All decisions relating to posting, transfer, disciplinary issues etc. will be taken by the two officers and the opinion of the Chief Minister will have no value. These decisions will then be forwarded to the Lieutenant Governor of Delhi whose decision shall be final.

Such a statutory body, wherein all decisions are taken by bureaucrats and the opinion of an elected Chief Minister can just be ignored, is unheard of in administrative history. This provision does not square with the content of Article 239AA (4) of the Constitution which confers the power on the council of ministers headed by the Chief Minister to deal with all administrative matters relating to the governance of the Union Territory of Delhi except the exempted items.

Other key provisions

This Ordinance contains another curious provision under which if the secretary to the council of ministers forms an opinion that the cabinet decision is not in accordance with the law or rules of procedure, he can bring it to the notice of the Lieutenant Governor for his decision thereon. In effect the secretary has the power to review the cabinet decision. All that is required is for the secretary to form an opinion. He can then act on such opinion by referring it to the Lieutenant Governor who can rescind the cabinet decision.

There is yet another provision (45 J (4)) which introduces a new procedure for summoning and proroguing a session of the Assembly. Under the present constitutional system, the decision to convene a session of the legislature is taken by the cabinet. Thereafter it is conveyed to the governor who signs the summons. This is the practice followed in all countries where the parliamentary system of government exists. But a strange and inscrutable procedure has been introduced by this Ordinance. Under this new procedure the proposal for convening the Assembly shall be submitted through the Chief Secretary to the Lieutenant Governor and the Chief Minister for their ‘opinion’ before issuing the summons. While Section 6 of the GNCTD Act says that the Lieutenant Governor shall from time to time be able to summon the Assembly, he does so on the advice of the council of ministers. He cannot decide to summon the House on his own whatever be his opinion. Furthermore, it is the Chief Minister and his ministers collectively who decide to summon the House. Therefore, it is absurd to provide for seeking the opinion of the Chief Minister or the Lieutenant Governor before the summons is issued.

Therefore, when we analyse the key provisions of this Ordinance in terms of Article 239AA as well as the GNCTD Act 1991, it will be found to not be in conformity with the Constitution. Article 239AA (7) empowers Parliament to make a law to supplement the provisions contained in that article.

To supplement the provisions does not mean making contrary provisions. Parliament has not been given any power by this Article to make a law conferring all powers on the Lieutenant Governor with respect to the administration of the territory of Delhi. Similarly, it also does not empower the President either to make a law conferring powers on bureaucrats to review the decision of the cabinet or vote out the Chief Minister in matters of posting, transfer and disciplinary actions.

Thus, the Ordinance as it stands suffers from serious legal infirmities.

P.D.T Achary is the former Secretary General of the Lok Sabha

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