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Synopsis

The Delhi government recently filed a writ petition in the Supreme Court challenging the constitutionality of the Ordinance issued on May 19.

The Delhi Government alleged that the ordinance "wrested" control over civil servants serving in the Government of NCT of Delhi from the Delhi government and "vested it to the unelected Lieutenant Governor". 

It sought a direction to quash the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, and to declare it unconstitutional.

The AAP government claimed that the Ordinance is an unconstitutional exercise of executive fiat, which violated the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA. 

It also contended that the Ordinance legislatively overruled a Constitution Bench judgement of the Supreme Court passed on May 11, 2023.

The NCT government also stated that the Ordinance is manifestly arbitrary, and is an impermissible and unconstitutional abuse of Ordinance making powers under Article 123 of the Constitution. 

The Ordinance overruled the Constitution bench judgement without "altering its basis, which was that accountability of civil servants to the elected arm of the government, and the elected government’s control over the civil service, is a substantive mandate of the model of governance envisaged by the Constitution, including for the NCT of Delhi under Article 239AA", the plea stated.

On May 11, a five-judge constitution bench of the Supreme Court held that it is ideal to hold that a democratically elected Delhi government should have control over its officers and the LG is bound by the advice of the elected government, except in matters of public order, police, and land. It had also said that if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. 

On May 19, the Centre, however, promulgated the Ordinance setting up a permanent authority known as the National Capital Civil Service Authority, with Delhi chief minister as its chairman along with chief secretary, Delhi, Principal Secretary (Home), Delhi to make recommendations to the Delhi LG regarding matters concerning transfer posting, vigilance and other incidental matters. However, in case of difference of opinion, the decision of the LG shall be final.  

Questioning the validity of the move, the Delhi government contended that the Ordinance destroyed the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA, a sui generis provision incorporated to fulfill the popular, regional, and democratic aspirations of the people of Delhi. 

"The Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service. This was first attempted in 2015, vide MHA Notification No. SO 1368 (E), the basis of which has already been declared unconstitutional in the 2023 Constitution Bench judgement of this Court," it claimed. 

It is to be noted that on May 20, the Centre filed a review petition in the Supreme Court against May 11 judgment.

The AAP government, in its plea, also said, "The Ordinance clearly seeks to revert the situation to what the 2015 Notification had sought to install, in complete disregard for this Court’s authoritative view. Though the impugned Ordinance feigns a degree of democratic involvement by making stray references to the Chief Minister, it in fact relegates the Chief Minister to being a minority-voice even in the Authority tasked with making nonbinding ‘recommendations’". 

The Delhi government also claimed that the Ordinance showed contempt for elected assembly and elected government while making a pretense of their involvement through the Chief Minister. 

"The promulgation of the present Ordinance is an apparent attempt to circumvent democratic and judicial deliberations. The Cabinet Resolution approving the promulgation was passed on 17.05.2023, a mere 6 days after the ruling of the 2023 Constitution Bench of this Court," it stated. 

"Furthermore, despite the Cabinet approval on 17.05.2023, the Ordinance was promulgated only on 19.05.2023, and became available in the public domain late in the evening of 19.05.2023, i.e. after the Court rose for vacations. The unseemly hurry in reversing a ruling of this 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," it said.