Late last Friday, the President promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 that took away the power of the Delhi government over services. Instead, the lieutenant governor (LG) — an official appointed by the central government — was given the final say on the question of transfers and postings of bureaucrats in the Delhi government. The ordinance established a statutory body, the National Capital Civil Services Authority, to decide on issues concerning the transfer and posting of bureaucrats. The authority comprises the chief minister (CM), the chief secretary, and the principal home secretary of the government of the national capital territory of Delhi, which means that the decision of the elected CM can be vetoed or overruled by two senior unelected bureaucrats.
The 2023 ordinance was promulgated in the wake of the unanimous judgment passed by the Constitution bench of the Supreme Court (SC) on May 11, holding that the democratically elected government of Delhi, rather than the LG, should exercise control over services in Delhi. Thus, other than the constitutionally mandated exceptions of land, police, and public order, the five-judge bench held that the elected Delhi government had final legislative and co-extensive executive power over issues of transfer and posting of the bureaucrats. The rationale behind the court’s judgment was that an elected government must be able to control and hold to account the civil service officers posted in its services, since they “play a decisive role in the implementation of government policy.”
Against this backdrop, the promulgation of the present ordinance raises a host of procedural, propriety, and substantive issues. In general, ordinances are promulgated under Article 123 of the Constitution, when both Houses of Parliament are not in session, and when the President feels that circumstances exist which render it “necessary” for her to take immediate action. Thus, there is a sense of urgency that is built into Article 123.
The SC, in 2017, issued a significant judgment, Krishna Kumar Singh v State of Bihar, holding that the power to promulgate ordinances was conferred on the President to prevent a state of constitutional vacuum when “unforeseen events may arise which need legislative redressal.” The seven-judge bench held that ordinance promulgation was an exceptional power, intended to meet a constitutional necessity
What was this “unforeseen event” that required urgent intervention from the executive at the Centre? It is clear that the 2023 ordinance is intended to undo the effect of the SC’s judgment, passed merely eight days earlier.
The central government claimed it had primacy in controlling services and the power to transfer bureaucrats in Delhi before the SC. Having lost by a unanimous verdict, it has now decided to give short shrift to the verdict by immediately having an ordinance promulgated.
The recitals in the ordinance expressly state that it has been issued because it is “in the larger national interest that the people of entire country have some role in the administration of the national capital through the democratically elected central government” and to give effect to the “democratic will of the nation in the matter of governance of its capital”. In this manner, the Centre (through the LG) has taken over the Delhi government’s power over services. It is well known that the power over the transfer postings in a bureaucracy directly correlates to efficiency and effectiveness of governance since it is the unelected civil servants who are the most important cog in the system to implement policy. The language in the ordinance, thus, reflects a further attempt to cement the unitary power of the central government, while undermining the principles of democratic accountability, representative government, and cooperative federalism.
The timing of the ordinance is also peculiar. The SC’s judgment was passed on May 11. On May 19, the President promulgated the ordinance late in the evening — on the same day the apex court closed for vacations.
There are other substantive issues with the ordinance — such as whether it passes the legal test of nullifying the SC’s judgment by removing the basis for the judgment (permissible) or by simply contradicting it (impermissible). The court will have to consider whether the ordinance can nullify the effect of its ruling without amending Article 239AA of the Constitution (dealing with the governance structure of Delhi). It will also have to consider the effect of the ordinance on federalism, which is part of the basic structure of the Constitution.
It is almost guaranteed that the ordinance will be challenged before the SC. As and when that happens, it is imperative that the top court hears the matter on an urgent basis and decides the issue expeditiously. Judicial inaction, through delay, should not end up de facto sanctioning the status quo.
Vrinda Bhandari is a Delhi-based advocate The views expressed are personal
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