New Delhi: Defending its decision to give itself control over Delhi’s bureaucracy, the central government told the Supreme Court Monday that it had to step in with an ordinance because ministers in the Aam Aadmi Party (AAP) government in Delhi launched a “witch-hunt” by harassing officers to influence their decision-making.
In a written submission, the Centre said during the period between 11 May and 17 May, “virtual turmoil continued whereby the political executive kept on issuing various directions, posting them on social media and insulting and humiliating the bureaucrats and officials”.
Stating that it then had to intervene, the Centre contended that such actions “were not only not in conformity with constitutional provisions, effective model governance, democratic norms but were also reflecting before the global community as immature and undemocratic acts, virtually paralysing the nation’s capital resulting in anarchy”.
Any delay in promulgation of the ordinance, it said, “would not only have paralysed the administration of the national capital but would have embarrassed the entire nation within and outside the country”.
The ordinance was promulgated in May this year, in a bid to nullify the effect of the Supreme Court decision that declared that the Delhi government has administrative and legislative control over “services”.
The judgement delivered by a five-judge Constitution bench on 11 May had allowed the Arvind Kejriwal-led AAP government in Delhi to exercise its executive as well as legislative authority over the officers of various services, including those who were not recruited by it and were allocated to Delhi by the Union of India. This included the authority to transfer and post officers within the government, frame service rules for them or undertake any other measure for governance purposes, including passing a law in the assembly.
However, within days of the Supreme Court judgement, the central government issued an ordinance for the creation of a new statutory authority, the National Capital Civil Services Authority (NCCSA), to handle transfer and posting of bureaucrats in the national capital. This ordinance was then challenged before the apex court by the Delhi government.
Demanding the dismissal of the petition, the central government contended that the “impugned ordinance is aimed to statutorily balance the concerns of the central government as well as GNCTD as regards the administration of the capital of the country/Union Territory of Delhi by giving purposeful meaning to the manifestation of democratic will of people reposed in the central government as well as the GNCTD”.
It also argued against a stay on the ordinance, submitting that it is yet to be tested in the Parliament and “if stayed, will cause irreparable harm to the administration of GNCTD”.
The central government further submitted that the ordinance will be introduced in the Monsoon Session of Parliament commencing from 20 July.
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‘Unfounded, misconceived and untenable’
The central government’s affidavit asserted that Delhi government’s demands in the petition were “unfounded, misconceived and untenable”. It pointed out that the petition did not allege that the ordinance had been promulgated without any legislative competence of Parliament to make laws for the National Capital Territory (NCT) of Delhi.
At the core of the tussle between the Union and Delhi governments is Article 239 AA, which was effected through the Constitution (Sixty-ninth Amendment) Act 1991. The provision granted Delhi the special character of a Union Territory with a legislative assembly, with the L-G — a representative of the central government — as its administrative head.
This was also when Delhi was named the NCT of Delhi.
The central government has now relied on this Article to claim that it has legislative power to promulgate such an ordinance.
Article 239AA(3)(b) says the powers of the legislative assembly of Delhi won’t diminish the powers of Parliament under the Constitution to make laws with respect to any matter for a Union Territory.
It says the NCT of Delhi continues to be a UT despite insertion of Article 239AA, and that the “Union government represents the will of the people and as an elected government, its participation in the affairs in the administration of the NCT of Delhi is of vital importance”.
In its affidavit, the Centre asserted, “The national capital belongs to the entire nation and the entire nation is vitally interested in the governance of the national capital. It is in the larger national interest that the people of the entire country have a role in the administration of the national capital through the democratically elected central government.”
‘Immature act reflects badly on country’
The affidavit also tried to make a case for the ordinance by referring to the events that transpired after the Supreme Court’s 11 May judgement and before the ordinance was promulgated.
It claimed that after the judgement, CM Kejriwal met the Lt Governor and the latter told him that the Supreme Court’s verdict was “sacrosanct for him and should be followed in letter and spirit”.
Despite this, the affidavit said, Kejriwal and other Delhi government ministers “in a dramatic and convoluted fashion, immediately went on rampage by issuing orders and posting them on social media, which are in gross disregard to the rules and procedure already in place within regard to the administrative mechanism of the Civil Service Board”.
It claimed that even before the ordinance was issued by the central government, Kejriwal’s ministers “started uploading the orders on social media platforms and making statements in media and started a witch-hunt, harassment of officers, media trials, threats and street postures to influence the decision making by the officers”.
It also said that after the judgement, officers working in the vigilance department “came to be specifically targeted by the elected government”.
“The central government, therefore, examined the issue keeping in mind the fact that Delhi is the capital of the nation and any immature or insensitive act reflects badly about the country’s image outside the world,” it submitted.
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‘NCCSA working efficiently’
In its affidavit, the central government further asserted that the NCCSA has been functioning “in an efficient manner without any conflict”.
The Delhi government, it said, was “making claims using hypothetical situations” to contend that the elected government would not be able to implement its policy without having control over transfer and posting of these officers.
However, it then asserted that the “functional control lies within the ministers concerned”.
It also referred to the fact that in the last three years, Kejriwal “appreciated the work of all IAS officers…working in GNCTD and accorded them ‘outstanding’ rating…except one officer wherein ‘very good’ grading was given to such officer for the year 2019-2020.”
“All the IAS officers working in the GNCTD…had worked outstandingly during the last three years as per gradings given by the Hon’ble Chief Minister,” the Centre submitted.
‘Clever piggybacking’
Defending his decision to quash the appointments of 437 consultants, fellows and researchers hired under Delhi assembly’s fellowship program, the L-G in a separate affidavit claimed the appointments were made without adhering to provisions of reservations for Scheduled Castes (SCs) and others.
These appointments made by the Delhi government were quashed by the L-G earlier this month, after the President promulgated the controversial ordinance that gave the L-G overriding powers over “services”.
The Delhi government had questioned the quashing of these appointments through an interim application, which it filed along with the petition challenging the ordinance.
According to the L-G, the appointments were made without his approval and the selection criterion was revised after inviting applications. The selection process was rigged to appoint ineligible persons and fraught with nepotism and favouritism, he submitted.
The L-G also raised a question mark over the merits of the selected candidates and claimed they had political affiliations, and therefore, did not maintain political neutrality. He even cited some examples to contradict Delhi government’s contention that the candidates were able, well-qualified and had studied from international institutions of some repute.
Further, the L-G raised technical objections to the interim application, saying the issue at hand gave a separate cause of action and, therefore, the Delhi government should have approached the Delhi High Court instead of coming to the top court. The Supreme Court, he submitted, should not allow “this clever piggybacking” by the Delhi government, as it denies the L-G of his right to appeal in case of an unfavourable order.
As far as the challenge to the ordinance goes, the L-G said Delhi government had made political submissions, as opposed to legal and constitutional grounds. There is no reference to counter the overall competence of Parliament as far as Delhi is concerned, he contended.
(Edited by Amrtansh Arora)
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