Date : 30/06/2023
Relevance: GS Paper 2: Issues and Challenges Pertaining to the Federal Structure - Promulgation of Ordinance
Key Words: Article 239 AA, a triple chain of accountability, Ordinance, Article 123
Context -
Despite a recent Supreme Court ruling in favor of the Delhi government, the central government issued the ordinance, aiming to strip the elected Delhi government of its control over services and reassign it to the central government. This move has sparked concerns about the erosion of democratic values and accountability.
Ordinances in the Indian Polity:
- Article 123: Empowering the President with Law-Making Authority in Urgent Situations
- Immediate Legal Effect: Ordinances as Law Equivalent to Acts of the Legislature
- Parliamentary Ratification: Subsequent Approval by Parliament within Six Weeks
- Limited Validity Period: Maximum Duration of Six Months and Six Weeks
- State-Level Ordinances: Governor's Authority under Article 213
- Resolution of Timing Conflicts: Priority Given to the Later Session
Past Judgements of Supreme Court on Ordinance
- R.C. Cooper v. Union of India (1970): The Supreme Court ruled that the President's satisfaction in issuing an ordinance is subject to judicial review and cannot violate fundamental rights or constitutional provisions.
- A.K. Roy v. Union of India (1982): The Supreme Court upheld the validity of the National Security Ordinance, but set safeguards such as periodic review, grounds communication, and representation opportunity for detentions.
- D.C. Wadhwa v. State of Bihar (1987): The Supreme Court declared the re-promulgation of ordinances as unconstitutional, stating it undermines the legislative process, and held that ordinances lapse if not approved within six weeks of reassembly.
Key Features of the Government of NCTD (Amendment) Ordinance 2023:
Establishment of the National Capital Civil Service Authority (NCCSA):
- The NCCSA will be headed by the Chief Minister of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi serving as the other two members.
- Its primary function will be to make recommendations to the Lieutenant Governor (LG) regarding the transfer, posting, vigilance, and other related matters concerning All India Services (AISs) and Delhi, Andaman and Nicobar Islands Civil Services (DANICS) officers working in the Delhi government.
- Decisions within the NCCSA will be made through a majority vote, which means that the elected Chief Minister's decision can be overruled by the two senior bureaucrats.
Role of the Lieutenant Governor (LG):
- The LG will issue orders to implement the recommendations put forth by the NCCSA.
- If the LG disagrees with a recommendation, they may return it to the NCCSA for reconsideration. Ultimately, the final decision rests with the LG.
Changes introduced by the Ordinance:
- The Ordinance amends Article 239AA(3)(a) by including "services" from List II, expanding the range of matters under the control of the Union.
Central Government's Justifications:
- The ordinance's proponents put forth two justifications. Firstly, they argue that Delhi's status as the national capital necessitates a delicate balance of interests between the elected Delhi government and the central government.
- Secondly, they claim that Article 239AA of the Constitution grants Parliament the authority to pass laws related to services, even though they fall under the exclusive competence of the states.
The Core Constitutional Flaw:
- These justifications fail to address the central flaw in the Delhi Services Ordinance. The ordinance undermines the essential principles of representative democracy and a responsive administration. Control over services is vital for implementing policies and promises made by elected representatives.
- By depriving the elected government of this control, the ordinance disrupts the "triple chain of accountability" that ensures civil servants answer to the cabinet, the cabinet to the legislature, and the legislature to the electorate.
Preservation of Representative Governance:
- The constitutional provisions pertaining to Delhi's special status, particularly Article 239AA, already acknowledge the unique position of Delhi as the national capital.
- While certain areas like public order, land, and police are explicitly restricted from the purview of the Delhi government, services remain within its jurisdiction.
- This arrangement preserves the triple chain of accountability, ensuring that Delhi's bureaucrats are answerable to the elected government, which, in turn, is accountable to the legislature and the people of Delhi.
Severing the Chain of Accountability:
- The Delhi Services Ordinance disrupts this established chain of accountability by transferring complete control of services to the central government.
- Rather than responding to specific circumstances that require legislation, the ordinance attempts to undermine the constitutional balance by providing exclusive power to the central government.
- Its lack of a concrete reason for enactment renders it manifestly arbitrary and unconstitutional.
Conclusion:
The Delhi Services Ordinance poses a significant threat to representative democracy and responsible governance, contrary to the intended constitutional framework. The erosion of the triple chain of accountability weakens the foundation of democratic governance in Delhi. As the legal battle continues, it remains to be seen how the Supreme Court will adjudicate this matter and address the grave constitutional implications at hand.
Probable Questions for Mains Exam -
- Question 1: Discuss the constitutional implications of the Delhi Services Ordinance and its impact on representative democracy and responsible governance. (10 Marks, 150 Words)
- Question 2: Analyze the key features of the Government of NCTD (Amendment) Ordinance 2023 and evaluate its implications on the triple chain of accountability in the context of the Delhi government. Critically examine the justifications provided by the central government and discuss the constitutional flaws in the ordinance. (15 Marks,250 words)
Source : The Hindu
