DELHI ORDINANCE
1. Context
The Ordinance promulgated by the President on May 19, 2023, amending the Government of National Capital Territory of Delhi Act 1991(GNCTD Act) took away the services from the jurisdiction of the Delhi government. The services had been earlier restored to the Delhi government by the Supreme Court in a landmark judgment delivered on May 11, 2023.
2. What is an Ordinance?
- Under Article 123 of the Constitution, the President possesses law-making powers through the issuance of ordinances during the recess of Parliament.
- Article 213 grants the Governor of a state the authority to issue ordinances when the state legislative assembly or either of the two Houses (in states with bicameral legislatures) is not in session.
Ordinance powers refer to the authority vested in the executive branch of government to issue Ordinances, which are temporary laws with the same force and effect as an Act of Parliament. Ordinances allow the government to take immediate action in situations where it is impractical or not feasible to wait for the regular legislative process. The powers associated with Ordinances vary depending on the country and its constitutional framework. Here are some key aspects of ordinance powers:
- Legislative Authority: Ordinances enable the executive to legislate on matters that fall within the legislative competence of the legislature. They can create new laws, amend existing laws, or repeal laws in the same manner as a regular legislative process.
- Temporary Nature: Ordinances have a limited lifespan and are temporary in nature. They are typically issued during recess periods when the legislature is not in session. Once the legislature reconvenes, the Ordinance must be approved by the legislature to become a permanent law. If not approved within a specified period, it lapses.
- Urgency and Necessity: Ordinances are typically promulgated to address urgent and pressing matters that require immediate action. They are often used in situations where delay could lead to harm, such as during emergencies or when there is a need for immediate legislative intervention.
- Constitutional Limitations: The powers to issue Ordinances are subject to constitutional limitations and safeguards. These limitations may include specifying the circumstances under which an Ordinance can be issued, the necessity of obtaining the President's or Governor's approval, and the requirement of subsequent legislative approval.
4. Supreme Court Judgment on Governance Control in Delhi
- Ordinance Nullifies Supreme Court Judgment
- Court's Finding: Lack of Government Control over Officers Paralyzes Governance
- Constitution Makers' Intentions: Incorporating Article 239AA for Special Constitutional Status to Delhi
- Court's Decision: Legislative and Executive Power over Services like Indian Administrative Services and Joint Cadre Services to Reside with NCTD (National Capital Territory of Delhi) for Day-to-Day Administration.
5. National Capital Civil Services Authority: Undermining Delhi Government
- Services Transferred: The ordinance removes services from the Delhi government's control
- National Capital Civil Services Authority: Established with the chairman and two members
- Chief Minister as Chairman: Chief Minister appointed as the authority's head
- Composition: Chief Secretary and Home Secretary serve as other members
- Decision-Making: Two members constitute a quorum, able to make all decisions
- Purpose Revealed: Authority's setup indicates the true intent of the provision
- Limited Value of Chief Minister's Opinion: Chief Minister's input holds no significance
- Final Decision by Lieutenant Governor: All decisions are forwarded to the LG, who has ultimate authority
- Unprecedented Statutory Body: It unheard of in administrative history to ignore the elected Chief Minister's opinion
- Conflict with Constitution: Contradicts Article 239AA (4), which grants the council of ministers power over administrative matters in Delhi, except exempted items.
6. Curious Provisions of the Ordinance
Provision 1: Secretary's Power to Review Cabinet Decision
- Secretary to the council of ministers can challenge cabinet decision if it violates law or rules.
- Secretary's opinion leads to Lieutenant Governor's decision, enabling the rescission of the cabinet decision.
Provision 2: Altered Procedure for Summoning Assembly
- New procedure introduced for convening assembly sessions.
- Proposal submitted through Chief Secretary to Lieutenant Governor and Chief Minister for their 'opinion'.
- Deviates from established practice where the cabinet decides and the governor signs the summons.
- Lieutenant Governor cannot unilaterally summon the House and must follow the council of ministers' advice.
Constitutional Non-Conformity
- Analysis reveals non-compliance with Article 239AA and GNCTD Act 1991.
- Parliament is empowered to supplement provisions, not make contradictory provisions.
- No authority granted to Parliament or President to confer powers on Lieutenant Governor or bureaucrats to review cabinet decisions or remove Chief Minister's authority in posting, transfer, and disciplinary matters.
Legal Infirmities of the Ordinance
- Ordinance suffers from serious legal flaws in its current form.
- Contradicts constitutional provisions and grants undue powers to non-elected officials.
7. Judicial safeguards to avoid re-promulgation of ordinances
- Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate an ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
- It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
- Supreme Court in Krishna Kumar Singh Vs. The state of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.
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For Prelims: Government of National Capital Territory of Delhi Act 1991(GNCTD Act), Article 239AA, Section 3A of GNCTD Act, Lieutenant Governor, Chief Minister, RC Cooper vs. Union of India (1970), DC Wadhwa vs. the State of Bihar (1987).
For Mains: 1. Discuss the constitutional concerns and curious provisions in the Ordinance nullifying the court's decision regarding the jurisdiction of the Delhi government. (250 Words)
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Previous year questions
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1.Which of the following statement(s) regarding promulgation of ordinance is/are correct? (UPSC CAPF 2020)
1. President can promulgate ordinances which are of temporary duration.
2. An ordinance promulgated by the President has to be ratified by Parliament within six weeks of its re-assembly.
Select the correct answer using the code given below:
A. 1 only
B. 2 only
C. Both 1 and 2
D. Neither 1 nor 2
Answer: C
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Source: The Hindu
