The legislative subjects included in item 41 of the State List of the Seventh Schedule of the Constitution are the State Public Service and the State Civil Service Commission. States have exclusive power to legislate on any of these subjects. Article 239AA, which gives special status to Delhi, clearly states that all matters in the state list come under the legislative jurisdiction of the Delhi Legislative Assembly. Under this provision, services come under the jurisdiction of Parliament and the Delhi government. However, the Union government, through a notification issued in 2015, excluded 'services' from the legislative and administrative jurisdiction of the Delhi government. However, the Constitution Bench of the Supreme Court, in a judgment delivered on May 11, held that the service falls under the purview of the Delhi Assembly and, therefore, the Delhi government has absolute control over it.
Within days of the ruling, the federal government issued an ordinance nullifying the Supreme Court's order. Through this ordinance, the Union government not only deprived the Delhi government of services, but also brought far-reaching structural changes in the relationship between the Delhi government and the Lieutenant Governor (LG), the Union government's representative.
SC judgment invalidation
In its judgment, the Supreme Court held that the LG is obliged to act on the assistance and advice of the Council of Ministers, except in matters relating to police, security and land. The ordinance supersedes this order by giving the LG sole authority to take final decisions on all matters considered by the government. The Union government seems to believe that special status has been given to Delhi by amending the Constitution with the sole purpose of making the LG the supreme ruler.
Reading this ordinance is a great experience. It begins with an unusually long preamble explaining the background of the ordinance. The Supreme Court returned services to Delhi after the court held that the government could not function without complete control over the bureaucracy. The Delhi government could not fulfill its responsibility to the people of the city unless its officials acted obediently to the government. Even a ruling by the Constitutional Court detailing the constitutional requirement that officers be accountable to an elected government did not deter the federal government, which quickly followed the Supreme Court's ruling. He submitted an ordinance to invalidate the .
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This ordinance raises serious questions. Can Congress override a Supreme Court decision? The answer to this question has been provided by the Supreme Court in numerous decisions.in Shri Prithvi Cotton Mills Ltd. vs Borough of Broach (1969) 2 SCC 283, the Supreme Court held that “Given the legislative power, it is not sufficient to declare that a decision of the court is not legally binding; A decision of a court is always binding unless the circumstances on which it is based have fundamentally changed and the decision would not have been made in the changed circumstances. Must be. ” The court emphasized that the legislature does not have judicial power and that judicial power alone can override court orders.
in Free People's Federation vs. Union of India (AIR 2003 SC); The Supreme Court reaffirmed this point in the following words: “The declaration that an order by a court is invalid is normally part of the judicial function. The legislature cannot declare a decision of a court to be non-binding or invalid. You can change the basis for a decision, but you cannot review such a decision and undo it.”
Next, let's take a look at the relevant provisions of the ordinance invalidating the Supreme Court's judgment. The Ordinance adds a new provision (Section 3A) to the Government of the National Capital Territory Act 1991 (GNCTD Act), which provides that the Legislative Assembly may, “notwithstanding anything contained in any judgment, order or statute of any court” Power to make laws with respect to all matters listed in item 41 of List II. This clause nullifies the court's decision that the “services” remain with the Delhi government.
The court's judgment was based on Section 239AA(3), which states that all matters in the state list, except police, security and land, fall within the legislative jurisdiction of the Delhi Assembly. Because the executive power has the same power as the legislative power, the government can exercise executive power over all matters for which Congress can legislate. However, Section 3A does not indicate the basis on which this section was introduced. In the absence of such a basis, this provision violates the Supreme Court's judgment. According to the court, any law enacted to nullify a court's decision without changing the basis of the decision is invalid. Therefore, for this reason, Section 3A is found to be invalid.
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The State Public Service and the State Civil Service Commission are listed in the State List in the Seventh Schedule of the Constitution.
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The Constitution Bench of the Supreme Court, in a judgment delivered on May 11, held that the service falls under the purview of the Delhi Assembly.
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Within days of the ruling, the federal government issued an ordinance nullifying the Supreme Court's order.
Innovative proposals for ordinances
The ordinance provides for the National Capital Civil Service Authority to recommend disciplinary matters related to IAS, Delhi, Andaman & Nicobar, Lakshadweep, Daman & Diu, Dadra & Nagar Haveli (Civil), as well as recommendations regarding transfers and postings. Contains innovative proposals for the establishment of a Service (DANICS) personnel. This authority will be chaired by the Prime Minister and its members will be the Secretary-General and the Chief Home Secretary. All decisions are taken by majority vote, so in effect the Chief Secretary and Home Secretary make all recommendations and the Prime Minister is always in the minority. The authority's recommendations will be submitted to his LG and the LG's decision will be final.
In fact, it is not clear how the Prime Minister can become part of the authority mandated to recommend transfers and placements if the government is stripped of its services. In fact, after this Ordinance, the Delhi government is prohibited from dealing with four subjects – Police, Security, Land and Services, while Article 239AA(3) exempts only Police, Security and Land. has been done. Stripping state governments of their authority over services ultra virus It is invalid because it violates the Constitution.
“The LG acts with the assistance and advice of the Council of Ministers and therefore has a duty to act on the advice of the government.”
The ordinance contains another interesting provision covering the convening, prorogation and dissolution of parliament. Convening Parliament is a function of the LG under Section 6 of the GNCTD Act, 1991. Procedures in this regard are well established. Congress and state legislatures follow the same practices for convening and proroguing the House of Representatives. The decision to convene a session is made by the Cabinet headed by the Prime Minister. In fact, it is the cabinet's prerogative to convene parliament. After the cabinet takes a decision, it is conveyed to the LG by the parliamentary secretary. Therefore, LG issues a subpoena. Here, the LG is acting with the aid and advice of the Council of Ministers and is therefore obliged to act on the advice of the government.
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This ordinance seeks to introduce new procedures in this regard. Section 45 J (I) (4) (ix) provides that before any order is issued, proposals must be submitted through the Principal Secretary to the LG and the Chief Minister for 'comments'. First, it is not clear why the opinions of the LG and the Prime Minister are being sought since the Prime Minister is the decision maker in this matter and the LG acts on the decisions of the Cabinet. Second, the phrase “before issuing an order” is very confusing. What orders are referred to when the issue of subpoenas is involved?In fact, unnecessary confusion has been created when the entire procedure relating to the convening of the House remains well settled.
strange regulations
Another strange provision is Article 45K(3), which states that the Secretary of the Council of Ministers has the power to review the decisions of the Cabinet and, if he considers that the decisions of the Cabinet violate the law or regulations, It stipulates that you will: Please report this issue to LG immediately and seek their decision. This provision turns the principle of aid and advice on its head. This provision introduced a great deal of uncertainty into the cabinet's decision-making process.
It is puzzling that the president's legislative power under Article 123 of the Constitution was invoked to usurp local governments' day-to-day powers regarding the transfer and placement of employees working under them. It is normal administrative business of any government. Denying power through ordinances is unthinkable in a democracy. Giving this power to local governments is unconstitutional.
Achary PDT is a former Secretary General; Lok Sabha.
