In Open Defiance of the SC’s Judgement, Union Issues New Ordinance

DESK BRIEF: The Union's attempt to seize control of civil services from the NCT of Delhi's government contradicts the SC's decision.

In a significant manoeuvre yesterday, the Union government introduced an Ordinance contradicting the SC’s May 11th Constitution bench Judgement. The SC’s recent decision reaffirmed Delhi government’s administrative powers in the NCT of Delhi, after an 8-year long clash between the Union and Delhi governments for power over the capital. The Ordinance, issued last night, raises crucial questions on federalism, accountability of civil servants, and the powers of a democratically elected government. 

The Ordinance performs three functions. First, it removes ‘Entry 41’ (‘services’) of the State List from the Delhi government’s control, circumventing the SC’s ruling. The SC’s recent decision clearly recognises the powers (and the necessity of these powers) vested in the ‘constitutionally recognised and democratically elected government’ of the NCT of Delhi. While Parliament’s legislative powers to make laws in the NCT are undisputed, the Union Executive’s powers in the NCT are specifically limited to public order, police, and land.

Second, the Ordinance creates a new body—the National Capital Civil Services Authority. This body, made up of the Chief Minister and two Union appointees, will decide on civil service matters in Delhi. Decisions(which require a minimum of 2 members present) will be made through voting. The Union’s hold over two of the three seats severely undermines the role of the only elected member on the committee—Delhi’s Chief Minister. Recommendations on transfers or disciplinary steps, among others, will then fall to the Union Executive’s representative—the Lieutenant Governor (LG)—for approval. 

Finally, if a disagreement arises between the committee and the LG, the LG will have the final say.

In its recent decision (summary here), the SC recognised a ‘triple chain of accountability’ linking civil servants, Delhi’s elected ministers, and the Delhi electorate. With this new Ordinance, the chain is arguably broken. Civil servants will find themselves answering more to the Union executive rather than the ministers they work under, leaving Delhi’s electorate on the sidelines.

The SC acknowledged Delhi’s unique (‘sui generis‘) status and its federal structure under Article 239AA. This structure was intended to let Delhi’s people have a say in their governance. However, this Ordinance threatens to push Delhi back to a unitary structure, curtailing its democratically elected local power.

This isn’t the first time the Union government has attempted to circumvent SC rulings. Other cases on the SC’s docket include CBI/ED Director Tenure Extensions and Tribunal Reforms, where Union laws have similarly attempted to reverse SC decisions through Ordinances.

Read about the SC’s verdict in the Delhi-Union dispute on