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Centre’s Ordinance not what Kejriwal wants. But Modi govt is acting well within its rights

Promulgating the Ordinance has been a dexterous way of side-lining the effect of the Supreme Court judgment without referring to it.

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Saturday morning’s newspapers and Whatsapp groups were incredulous that an Ordinance had been issued late Friday night, stymieing the effect of the 11 May Supreme Court order on Delhi, removing the restraint on controlling officers and in effect making them accountable to the AAP ministers. Phones buzzed. Morning walkers stood in groups voicing their concerns. The observations were similar: “How can the central government bring a law and negate what a five-judge Constitutional bench has interpreted?” “Will this not amount to contempt?”

Indeed, the Supreme Court had observed that exclusion of the officers from the political executive would disable the government from implementing government policies and programmes and had given authority over services to the elected government. But has that order been belied by the Ordinance? No. A bare reading of the Ordinance shows that it is seemingly laying down the processes by which postings, transfers and disciplinary action against officials and allied matters would be administered. It has not tinkered with the judgment in any way.

What has the Centre’s Ordinance done?

It looks as though an iron fist has been used to vanquish the beleaguered CM. If he had harboured hopes of controlling services(officers), he has instead been rendered functus officio – unable to function without the agreement of the Chief Secretary and the Home Secretary – the other two members of National Capital Civil Service Authority  – who can together even negate what the CM desires be done.  The CM now has the choice of going back to the Supreme Court or of operating within the process prescribed by the Ordinance. He has already opted for the former.

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

What does the Ordinance provide? 

Starting with the All -India services (Indian Administrative Service and Indian Forest Service officers,) DANICS officers (akin to the state civil services) and including all other services working under the Delhi government, the broad process to be followed in making postings, transfers and dealing with vigilance matters has been prescribed. Nowhere has the Ordinance prevented or deterred an officer posted in any department (of which there are over one hundred) to stop assisting in the formulation of policies and programmes or, once these are approved, to stop their implementation.

The Ordinance also does not question the principle of aid and advice. Ergo, it is unlikely that the courts will treat it as contumacious or requiring immediate interference from a judicial standpoint.

While the general belief in the few hours that I have listened to conversations is that the Ordinance is a ham-handed effort to contain Kejriwal and his growing popularity, evinced by the MCD election victory, the Apex Court’s rejection of the nominated aldermen stratagem and more recently the delay in appointing the DERC Chairman, the justification given in the preamble to the Ordinance is that the Capital is the seat of the President, Parliament, the Supreme Court, and various constitutional functionaries, foreign missions and international agencies. Besides, the city is visited by national and international dignitaries.

Therefore, to quote the Ordinance, it is in national interest to maintain “the highest possible standards of administration and governance of the national capital ” and, thereby forestall (my words) “any event in the capital which can affect not only the residents, the country or have the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum.”

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

The underdog and  the law

Notwithstanding the foregoing apprehensions,the sympathies of the common man continue to be with Kejriwal. “Usse kaam nahi karne dete,” is the oft-repeated refrain among guards, drivers and domestics who reside in a nearby slum and an urban village where I stay. But whatever people might feel, it does not mean that the central government lacked the authority or locus to issue the ordinance. Two Articles in the Constitution enable this without a doubt. Subsections 3 and 7 of Article 239 AA of the Constitution, through which the Government of Delhi was born, stipulate that Parliament may, by law, make provisions for giving effect to, or to supplement the provisions contained in clauses of Article 239 AA and for all matters incidental or consequential thereto. And that includes item 41 in the State list, which refers to Services. The legislative competence is undeniably available and has already been used in the past, for example, by setting up the NCT of Delhi Act in 1991 and amending it in 2015.

Further, Article 73 of the Constitution states that “the executive power of the central government shall extend to matters on which Parliament has the power to make laws.”  This includes the Centre’s executive authority over the union territories. Delhi being a union territory (albeit with legislature), comes under Article 73 of the Constitution.

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

What can the CM do? 

Given this, what can the Kejriwal government do to make “obstructionist officers face the music”, as was announced hours after the judgment came? As matters stand, very little.

In such a situation, I cannot but recall the years that I spent in the Delhi government. It was not a charmed existence and as Chief Secretary I was regularly upbraided both by the then Lieutenant Governor and by the Chief Minister for showing deference of partiality to one or the other. But despite the wrangling, there was a shared conviction that Delhi must develop, young people should get access to the best education and citizens must have good health services and a decent quality of life. To achieve those ends, political differences that surfaced time and again took second place in the interest of Delhi. Things have changed radically since then. Outfoxing the elected government on the one hand and heaping calumny on the Central Government on the other, have become a recurring theme day after day, with vituperation only increasing.

And the Delhi citizen (and voter), while he watches the ping-pong match, is a canny fellow who cares more about paying less – at times even zero – for electricity, water, and sewage treatment, than he cares about the ongoing Delhi power imbroglio.

To sum up, promulgating the Ordinance has been a dexterous way of side-lining the effect of the Supreme Court judgement without referring to it. Reviled as the officers may be, no government can perform without a bureaucracy. Good officers are essential to implement political assurances. And if the positioning and control of the officials are determined by an Authority whose majority members are seen to owe allegiance somewhere else, getting one’s way may not be easy for the political executive of GNCT of Delhi. We live in interesting times.

The author was formerly Chief Secretary, Delhi and Secretary, Government of India. She Tweets @over2shailaja. Views are personal.

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