New Delhi: Ordinance of the Central Government for the establishment of Statutory body to decide cases on transfer posting of bureaucrats under Delhi government has expressed mixed views constitutional expert Does it negate the recent judgment of the Supreme Court, which gave the government control over the bureaucrats working under it?
Vivek Agnihotri, The former Rajya Sabha secretary general said an ordinance – in this case, the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 – does not equate 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 order of the apex court. The Supreme Court said that the state government should have a say and the chief minister is a member of this statutory body. Agnihotri told ThePrint.
Senior advocate Sanjay Hegde agreed that an ordinance cannot amount to contempt of court as it is an exercise of legislative power. However, he said, the direct undoing of the court’s decision “is an encroachment on judicial power” and can be quashed.
He recalled the Supreme Court order in the President’s reference in the Cauvery ordinance case where the apex court had said that the state cannot override an individual decision and affect the rights of the parties. “It would be to exercise the judicial power of the State and act as an appellate court or tribunal,” the senior advocate said.
“It appears that the central government has not learned its lesson after NJAC (National Judicial Appointments Commission) and tribunal cases where every attempt to overturn the Supreme Court’s final judgments was thwarted,” said senior Supreme Court advocate Gopal Sankaranarayanan. The NJAC Act relating to the appointment of judges was struck down by the apex court, while the judgment on tribunals pertained to administrative appointments to tribunals, a quasi-judicial body.
“The fundamental principles of democracy and federalism on which the Supreme Court’s judgment was based have been effectively subverted with a stroke of the executive pen. it’s yet another misadventure where they haven’t moved it through the lawBut timed it perfectly with the last day of the court,” said the lawyer.
Meanwhile, the central government has moved the Supreme Court to review the May 11 constitution bench verdict that the Delhi government has “legislative and executive power over services” in the national capital.
Read also: Decoding the SC verdict on Delhi’s ‘services’ – what power Kejriwal govt has now and what the LG has
new statutory body
The statutory body to be constituted is the National Capital Civil Services Authority (NCCSA), which will make recommendations to the Lieutenant Governor (LG) of Delhi on matters relating to transfer postings, vigilance and other relevant matters.
Headed by the CM, the NCCSA will also have the chief secretary and principal secretary, home – both appointed by the central government – as members and decisions will be taken on the basis of majority vote. The minimum number of members required to hold a meeting shall be two.
Faizan Mustafa, former vice-chancellor of NALSAR University of Law, Hyderabad, said that Parliament and the central government are “within their constitutional right” to overturn the Supreme Court.
“Many judgments have been overturned in the past… This is routine, but they have to remove the basis of this judgment, which in this case should be the power with a democratically elected government. Whether that basis has been removed is to be examined by the court,” he said.
separation of power
Declaring that Delhi’s elected government has both legislative and executive control over “services” in the capital, a Constitution Bench of the Supreme Court made extensive observations on the separation of powers between Parliament and the state legislature in the context of Delhi.
It said the Delhi government’s competence over entries in List II (areas on which only the state has the power to make laws and rules) – and List III (concurrent list with entries on which both the central government and states can make laws) will not extend to the three entries of List II – public order, police and land – which are expressly excluded under Article 239AA of the Constitution.
Article 239AA of the Constitution gives Delhi a unique character with a legislative assembly, with the LG – the representative of the central government – as the administrative head. It also redesignated Delhi as the NCT of Delhi. (NCTD),
However, the Constitution Bench said that the executive powers of the NCTD in respect of entries in the above two lists would be subject to “executive power expressly conferred on the Union by the Constitution or by law enacted by Parliament”.
At the same time, the judgment, giving greater clarity on the legislative competence of Parliament than in Delhi, said that this power would extend to “all matters in List II and List III”. including entries – public order, police and land – that are excluded from the legislative domain of the NCTD By virtue of Article 239AA.
Highlighting the directive, constitutional expert and senior advocate Ajit Sinha said that “it is a redeeming feature” that gives Parliament the liberty to change or modify the existing scenario.
The central government has exercised its power to promulgate an ordinance which lays down the procedure for transfer of officers working in Delhi. “The ordinance says that the transfer will be decided by a committee headed by the chief minister of Delhi,” he said.
According to him, the ordinance is not in contempt of the Supreme Court judgement. But the veto power given to the LG is not “in consonance with the spirit of the Supreme Court judgement”, which talks of cooperative federalism, he said.
The Ordinance states that in cases where the LG differs from the recommendation of the NCCSA, the former may return the recommendations to the latter for reconsideration; In case of difference, the decision of the Lieutenant Governor will be final.
(Edited by Smriti Sinha)
Read also: Why Delhi L-G’s approval of new service secretary ‘will not benefit’ the elected government