The Government of National Capital Territory of Delhi (GNCTD) has approached the Supreme Court challenging the ordinance brought by the Central Government recently to take away the powers of the GNCTD to control civil servants serving it.
The writ petition challenges the Government of National Capital Territory (Amendment) Ordinance 2023, which was promulgated by the President on May 19. The Ordinance has the effect of depriving Delhi Government of the power over “services”.
The petition points out that the Ordinance was brought out a week after a Constitution Bench of the Supreme Court pronounced that the Delhi Government has power over Entry 41 of List II (services). It is argued that through the Ordinance, the Central Government has in effect overturned the Supreme Court’s verdict.
The Ordinance is challenged as violating the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA of the Constitution. It is further argued that the Ordinance negates the principle of federalism and the primacy of the elected government.
“The principle of collective responsibility in a democracy – incorporated in Article 239AA(6) – requires that the elected government be vested with control over officials posted in its domain. In the federal context, this would require that such control be vested in the regional government – i.e. the GNCTD under Article 239AA – for matters in its domain. This essential feature was secured for the GNCTD by this Hon’ble Court’s 2023 Constitution Bench judgment, and is now sought to be undone by the Impugned Ordinance”, states the petition filed through Adovcate-on-Record Shadan Farasat.
The Ordinance envisages that a committee comprising the Chief Minister and two senior bureaucrats will make recommendations to the Lieutenant Governor regarding transfer and postings of civil servants; however, the LG will have ‘sole discretion’ in taking a decision.
“The Impugned Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service”, the Delhi Government states, pointing out that similar end was sought to be achieved by the Central Government through its 2015 notification, which was invalidated by the Supreme Court. The same position, which was found to be unconstitutional by the Supreme Court, is sought to be restored through the Ordinance.
It is also pointed out that as per Article 239AA, the Delhi Government has powers over all matters in the state list except three specified subjects – law and order, police and land. However, the Ordinance has the effect of adding the subject of “services” to the exempted categories, without a Constitutional amendment.
Impermissible to overrule a judgment
The Delhi Government states that it is a settled law that it is impermissible for the legislature to simply overrule a decision. The Ordinance has the effect of overruling the Supreme Court judgment without taking away its legal basis.
“The Impugned Ordinance attempts to reverse this Hon’ble Court’s ruling on each of these two aspects by simply amending the GNCTD Act, without amending the ruling’s basis, i.e. the Constitution itself. In so far as the Impugned Ordinance reverses this Hon’ble Court’s decision, it amounts to an impermissible ‘direct overruling’ or ‘review’ and is liable to be struck down”, the petition states.
The Ordinance is also challenged on the ground of manifest arbitrariness, as it makes governance impossible by taking away the control over services. Thus, the elected government has been rendered redundant. The provisions of the Ordinance give overriding powers to the Secretaries over the elected government and this can lead to unworkable impasse in administration.
“By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the GNCTD, the Impugned Ordinance in effect and design allows the Union to take over the governance of Delhi”
Abuse of powers under Article 123
Further, the Delhi Government argues that the Ordinance is an instance of abuse of powers under Article 123 of the Constitution, as there was no urgency to promulgate the Ordinance. The Ordinance has been brought in bad faith to overrule the Supreme Court’s judgment and was hastily notified soon after the Court closed for summer vacations.
“The unseemly hurry in reversing a ruling of this Hon’ble Court via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Delhi”, the petition states.