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What experts say about ordinance on control of services in Delhi: ‘Not SC contempt, but can be struck down’

Meanwhile, Central govt has moved SC, seeking review of 11 May judgment that Delhi government has 'legislative and executive power over services' in national capital.

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New Delhi: The central government’s ordinance for setting up of a statutory body to decide matters on transfer postings of bureaucrats under the Delhi government has evoked mixed views from Constitutional experts on whether it negates the Supreme Court’s recent judgment that gave the government control over bureaucrats working under it. 

Vivek Agnihotri, former secretary general, Rajya Sabha, said that an ordinance – in this case, the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 – does not amount to contempt of court. 

“In a way, it (the ordinance) tries to go around the Supreme Court, but it does not try to negate the apex court’s order. The Supreme Court said that the state government should have a say, and in this statutory body, the chief minister is a member,” Agnihotri said to ThePrint. 

Senior advocate Sanjay Hegde agreed that an ordinance cannot be in contempt of court since it is an exercise of legislative power. However, he added, the direct undoing of a court judgment “is an encroachment on judicial power” and can be struck down. 

He recalled the Supreme Court’s order in the presidential reference in the Cauvery ordinance case where the apex court held that the State cannot set aside an individual decision and affect the rights of the parties. “This would amount to exercising the judicial power of the State and to function as an appellate court or tribunal,” said the senior advocate. 

“It appears that the Union Government has not learnt its lesson after the NJAC (National Judicial Appointments Commission) and Tribunals cases where every attempt to subvert the solemn final judgments of the Supreme Court were thwarted,” said senior Supreme Court advocate Gopal Sankaranarayanan. The NJAC Act, dealing with the appointment of judges, was struck down by the apex court while the verdict on Tribunals related to administration appointments of tribunals that are quasi-judicial bodies.

“The fundamental principles of democracy and federalism on which the Supreme Court judgment was based has effectively been thrown overboard by a stroke of the executive pen. This is yet another misadventure where they have not moved it through legislation, but timed it perfectly with the last day of the court,” the counsel added. 

Meanwhile, the central government has moved the Supreme Court seeking review of the 11 May Constitution bench judgment that the Delhi government has “legislative and executive power over services” in the national capital.


Also Read: Decoding SC ruling on Delhi ‘services’ — what Kejriwal govt has power over now & what stays with L-G


 

New statutory body

The statutory body to be formed is the National Capital Civil Service Authority (NCCSA), which will give recommendations to Delhi’s Lieutenant Governor (L-G) over matters concerning transfer posting, vigilance and other incidental matters. 

Headed by the CM, the NCCSA will also have the chief secretary and principal secretary, home – both are appointed by the central government – as members and the decisions will be taken based on majority voting. The minimum number of members required to hold meetings will be two. 

Faizan Mustafa, former vice-chancellor of NALSAR University of Law, Hyderabad, said that the Parliament and the central government are “well within their constitutional right” to overturn the Supreme Court. 

“A number of judgments in the past have been overturned…This is routine, but they have to remove the basis of the judgment which, in this case, was that the democratically elected government should have power. Whether that basis has been removed is to be examined by the court,” he said. 

Division of power

While declaring that the elected government of Delhi has both legislative and executive control over “services” in the Capital, the constitution bench of the Supreme Court had made extensive observations on the division of powers between the Parliament and state legislature in the context of Delhi.

It said that competence of Delhi government over entries in List II (areas over which only the state has law and rule-making power) – and List III (concurrent list with entries on which both central government and state can legislate) would not extend to the three entries – public order, police and land – of List II that are expressly excluded under Article 239AA of the Constitution.

Article 239AA of the Constitution grants a unique character to Delhi with a legislative assembly, having L-G – the central government’s representative – as the administrative head. It also redesignated Delhi as NCT of Delhi (NCTD).

However, the Constitution bench said the executive powers of NCTD with respect to entries in the two above-mentioned lists shall be subject to the “executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament”.

At the same time, the judgment, giving more clarity on Parliament’s legislative competence vis-à-vis Delhi, said this authority would be over “all matters in List II and List III,” including entries – public order, police and land – that have been kept out of the legislative domain of NCTD by virtue of Article 239AA. 

Highlighting the direction, constitutional expert and senior advocate Ajit Sinha said that “this is a redeeming feature” which gives the Parliament the liberty to tweak or modify the existing scenario.

The central government has exercised its power to bring in the ordinance which prescribes a procedure to transfer officers working in Delhi. “The ordinance says that a committee with Delhi’s Chief Minister as its head would decide on the transfers,” he said.

According to him, the ordinance is not in contempt of the SC judgment. But the veto power given to the L-G is not in “consonance with the spirit of the SC verdict”, which talked about cooperative federalism, he added.

The ordinance notes that in cases where the L-G differs with the NCCSA’s recommendation, the former may return the recommendations to the latter for reconsideration; in cases of difference of opinion, the L-G’s decision will be final.

(Edited by Smriti Sinha)


Also Read: Why Delhi L-G’s approval of new services secretary ‘won’t benefit’ elected govt


 

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