Centre’s ordinance on Delhi bureaucrats bypasses parliament, promotes its own political interests

The last word on the saga of the Delhi government vs the Centre is yet to be spoken. But the issuing of ordinances, past and present, smacks of blatant misuse by an autocratic Central government that skirts debate and is intolerant of alternative viewpoints.

On May 19, the Union government promulgated an ordinance nullifying the Supreme Court’s May 11 verdict that handed over authority over civil servants in the national capital to the Delhi government. The Supreme Court judgement had also held that the lieutenant governor was to act on the “aid and advice” of the council of ministers in the Delhi government.

The National Capital Civil Service Authority, created by the ordinance, will be headed by the Delhi chief minister to handle the service conditions, transfer and posting of bureaucrats.

Perhaps, sensing that The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, may attract criticism, the Central government has filed a petition in the Supreme Court seeking a review of the ruling.

Long-running tussle

The dispute between the Delhi government and Central government-appointed lieutenant governor over who controls the bureaucracy in the national capital has been festering since a 2015 notification that handed this power to the lieutenant governor.

In 1991, the National Capital Territory of Delhi was created through the 69th amendment of the Constitution. Article 239AA (3) (a) specified that except for public order, police and land, the Delhi Legislative Assembly would have the power to make laws on matters in the state and concurrent list.

Article 239AA of the Constitution specifies special provisions with respect to Delhi.

The state list includes the matters over which the state government has jurisdiction while the concurrent list contains matters over which both, the state and Union government, have power over.

Part XIV of the Constitution contains provisions on how civil servants, as continuing cogs in the wheels of governance, are to be recruited, disciplined, and protected. It refers to the Union and states, without any mention of the Union Territories where bureaucrats also serve.

A committee under bureaucrat S Balakrishnan had recommended in 1989 that the administration of Union Territories will be part of the services of the Union even after setting up a legislative council.

This lack of clarity in the constitutional provisions and conflicting perspectives was evident during the Supreme Court’s ruling on an appeal by the Aam Aadmi Party-led Delhi government in July 2018. The Supreme Court ruled that the lieutenant governor is bound to follow the aid and advice of the Council of Ministers on all matters except those pertaining to police, public order and land. The Court also observed that “there is no room for absolutism and for anarchism”.

The Supreme Court ruling

The Supreme Court’s May 11 judgement, however, clarifies on a range of debates and disputes. The Court rightly observes that the civil services in a cabinet form of government are the soul of administration.

In the triple chain of command, the civil services are accountable to ministers, ministers to Parliament or Legislatures and Parliament is accountable to the electorate. Political neutrality, among other principles such as rationality and rule-based decision-making, are among the principles civil servants are expected to observe.

But given the increasing trend of civil servants acting in consort with the ruling party, rather than the rule of law, the Supreme Court has tried to fill a void in Part XIV of the Constitution to rule that Services referred to include Union Territories as well.

In this quest for clarity, the judges fall back on Article 367, pertaining to “Interpretation” and Section 3 of the General Clauses Act of 1897 that covers “definitions”. The term state, according to the General Clauses Act, would mean “states specified in the first schedule and includes a Union Territory”.

An amendment to Article 367 was also used by the Union government to scrap the special status of the former state of Jammu and Kashmir in August 2019. This was done by amending the interpretation of “Constituent Assembly of the state…” in Article 370, pertaining to the “temporary provisions with respect to the state of Jammu and Kashmir” to mean “legislative assembly of the state”, as explained by The Wire.

Having included the Union Territory under the panoply of Services, the Court also avers that Article 239AA gives sui generis – or distinct – status to Delhi.

The court also concluded that “in a democratic form of government, the real power of administration must reside in the elected arm of the state”. Undoubtedly, the ruling was a shot in the arm for the Arvind Kejriwal-led Delhi government.

The Centre’s ordinance

The ordinance issued by the central government, under Article 123, creates the National Capital Civil Service Authority headed by the chief minister with the chief secretary and home secretary as its other members.

The National Capital Civil Service Authority will decide on all service matters pertaining to Group A officers – who serve in the Delhi government – and DANICS, or the Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services.

The decision will be taken on the basis of a majority. Quite clearly, it is a ludicrous structure where two bureaucrats who report to the chief minister can overrule him. The lieutenant governor will have primacy in service matters as he can return the proposals for reconsideration, and, if not agreed to by the Authority, thump his writ over the matter.

It would have made more sense if the National Capital Civil Service Authority would have been headed by the chief minister and the Chief Justice of the Delhi High Court and the leader of opposition as members.

Ordinances, past and present

In the landmark case of DC Wadhwa vs State of Bihar in 1986, the Supreme Court had commented on the flagrant misuse of issuing ordinances. The case pertained to the ordinances passed by the Bihar government taking over 429 Sanskrit schools in the state and the payment of salaries to teachers.

The Court had said, “The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it can not be allowed to be ‘perverted to serve political ends’.”

In the case of RC Cooper vs Union of India in 1970, when the government nationalised 14 banks through an ordinance, the Supreme Court had said that the ordinance was issued not because “immediate action was required but to bypass the parliamentary debate”.

The scope of the judicial review of ordinances promulgated by the government was widened by the Supreme Court in the KK Singh vs State of Bihar case in 2017, pertaining to the appeals filed regarding the Sanskrit schools case.

The Court observed that the court will look “if it [an ordinance] has been passed based on relevant material or whether it amounted to a fraud on power or was actuated by an oblique motive”.

The Constituent Assembly, too, debated at length upon the powers of the president to issue ordinances. Some members said that no ordinance should deprive any citizen of their right to personal liberty, except on conviction after trial by a competent court of law. Others said an ordinance should expire within 30 days. Architect of the Constitution BR Ambedkar likened it to a necessary evil. The sentiment holds ground, going by the spurt in ordinances being issued – 76 in seven years.

But the constitutional morality and power of the Supreme Court to deliver clear rulings on areas obfuscated by conflicting subjective perspectives must be respected. Judicial review, a basic foundational structure of the Constitution, cannot be obliterated by the blatant misuse of promulgating ordinances to promote political interests and bypass parliamentary debate.

SN Misra is Emeritus Professor at Kalinga Institute of Industrial Technology, University, Bhubaneswar, and teaches Economics and Constitutional Law.