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THE DELHI ORDINANCE 2023: CENTRE’S MOVE AGAINST DELHI GOVERNMENT

INTRODUCTION

Recently in May 2023, the Central Government passed the Government of National Territory of Delhi (Amendment) Ordinance 2023. This move came after the Supreme Court decided on the eight-year-long battle between the AAP-led Delhi Government and the Central Government on the powers of the Delhi Cabinet to control the bureaucracy of the Delhi Government. Before the decision of the apex court, the Delhi Government’s bureaucracy was answerable to the Lieutenant Governor of Delhi who was appointed by the Central government. The issue that arose due to this arrangement was that the Delhi Government did not possess any control over the bureaucracy, affecting the implementation of numerous policies that were either put on hold or rejected due to interference of the Central Government as all these policies were to be approved by the LG of Delhi. The SC verdict was considered a good step towards fostering democracy in the country, but the Centre’s move of the ordinance has again created the problem, as it now seems a battle between the SC and the Centre.

THE DECISION OF THE APEX COURT

The Apex Court of India had given its final decision on the eight yearlong battle between the Centre and Delhi Government in May 2023. Before this in 2018, the apex court gave a verdict clearing certain issues in hand but had referred the service-related issue to a higher bench.

In 2018, the court decided on the interpretation of Article 239AA[1], which states the Special Provision for the NCT of Delhi. It confers powers on the Legislature of Delhi to formulate laws on the subjects given in List II and List III under Eighth Schedule, except those that have been expressly excluded in the Constitution. It also gave the Parliament powers to enact laws on all the subjects given in List II and List III. The apex court held that[2] the UT of Delhi is not similar to the other union territories of India. It has a certain special status, the court recognized that the executive power of the Government of Delhi is not very different from its legislative power; instead, it is coincident with the same. This means that Delhi Government’s executive power extends to the extent of its Legislative power, i.e. for subjects under List II and List III except those explicitly excluded. The court also gave an interpretation to the phrase “insofar as any such matter applies to Union Territories” which is not an exclusive term and thus cannot be used to restrict the powers of the Delhi Government. However, the question of control over services was not decided by the court and was referred to a higher bench.

The higher bench comprising of 5 judges has unanimously in 2023 May held that as per the Constitution of India, there exists a division in the administrative powers between the central and the Delhi government,[3] which should be respected. The court also stated in its 105-page judgement that Delhi Government, a democratically elected government should have control over its bureaucrats and officers in all matters except those expressly excluded (which are public order, police and land). The court also reiterated the fact that the LG of Delhi is bound by the advice of the democratically elected government on all the subjects except those stated above.

THE ORDINANCE OF 2023: CRITICAL ANALYSIS

The ordinance was notified by the Union within a week of the verdict of the apex court. The underlying objective that experts are pointing out is that the Union Government is trying to overrule the Apex court’s judgement, which confers power on the Government of Delhi to control services in the national capital.

The ordinance has constituted a National Capital Civil Service Authority (NCCSA), which shall be headed by the Chief Minister of Delhi, whose function is to oversee the decisions of the NCCSA; along with this, it will also have the chief secretary and principal home secretary of Delhi.[4] Till here the Ordinance seems fine, but the catch in the law is that in the case of a disagreement between the members, the issue was to be referred to the LG of Delhi, whose decision shall be final. This is an implication of the union’s attempt to reduce the administrative powers of the Government of Delhi.

The ordinance has been criticized by the AAP government characterizing the ordinance to be undemocratic and against the apex court’s decision. He also stated that the ordinance is against Constitutional principles as it takes away the functions of the elected government of Delhi.

The ordinance has been criticized for one main point, which is that it takes away the rights of the democratically elected government. The question of law that arises is whether the Parliament possesses any power to enact legislation to overrule any court’s order or judgement. This was answered by the apex court in Baharul Islam vs Indian Medical Association[5] where the court in para 77 observed as follows: “The Legislature cannot directly overrule a judicial decision. But when a competent Legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such legislative device which removes the vice in previous legislation which has been declared unconstitutional is not considered an encroachment on judicial power but an instance of abrogation.” Thus, when the vice in the law is altered by the Legislature only then the Legislative overruling of a judgement is valid.

In this case, the underlying law behind the apex court’s judgement is Article 293AA[6], and the ordinance nowhere alters or makes changes in the said law, instead, it provides for excessive use of power conferred under Article 239AA[7]. In addition, the taking away of power over services from elected government to an unelected representative cannot be justified under the constitution, and therefore to say that the ordinance has overruled the judgement by altering the underlying law is incorrect.

In addition, the Centre has moved the Supreme Court with a review petition against its order, while arguing that the judgment makes Delhi a full-fledged state, while it is a Union Territory.

CONCLUSION

The Centre’s move to bring an ordinance to retrieve back the powers in its hand to control the service in the national capital is against the principle of Federalism as has been enshrined in the Indian Constitution. It is also against the Separation of Powers as through this legislation the Union is trying to sabotage the judicial machinery by overruling its judgement. There seems that the government is trying to sabotage the principles of the Constitution to confer and maintain its control over the states and intervene in the functioning of the states. This move of the government does not represent a good image of the government, giving an image of an undemocratic nature of the affairs in the country.

In my opinion, either the Centre should roll back the ordinance, which would show that they realize their mistake and should take the legal recourse available such as review and revision petitions. However, if this does not happen the apex court should take cognizance of the situation and do justice to the Indian Constitution and the people of Delhi who have elected their representative in the Delhi Legislature to decide on the administrative services. In addition, strict guidelines should be made to the Union to prevent any such future acts from the Union.

Author(s) Name: Srajan Rai (Dharmashastra National Law University, Jabalpur)

Reference(s):

[1] Constitution of India 1950, art 239AA

[2] Apoorva, ‘Explained| Supreme Court judgment settling tussle between Delhi Govt and Centre’ (SCC Online, 13 May 2023) <https://www.scconline.com/blog/post/2023/05/13/explained-supreme-court-judgment-settling-tussle-between-delhi-govt-and-centre-legal-news/> accessed 11 June 2023

[3] ‘Centre moves SC seeking review of verdict that gave Delhi govt control over services’ (The Economic Times, 20 May 2023) <https://m.economictimes.com/news/india/centre-moves-sc-seeking-review-of-verdict-that-gave-delhi-govt-control-over-service/articleshow/100375660.cms> accessed 11 June 2023

[4] ‘Gutting the Powers of an Elected Government’ (2023) 58(23) Economic And Political Weekly <https://www.epw.in/journal/2023/23/editorials/gutting-powers-elected-government.html#:~:text=The%20Government%20of%20National%20Capital,of%20bureaucrats%20working%20under%20it> accessed 11 June 2023

[5] Baharul Islam v Indian Medical Association (2023) SCC OnLine SC 79

[6] Constitution of India 1950, art 239AA

[7] Ibid