SNewspapers and WhatsApp groups this morning could not believe that an ordinance was promulgated late on Friday, effectively nullifying the effect of the May 11 Supreme Court order on Delhi, restraining officers removed and effectively made him answerable to you ministers. The phone rang. Morning walkers were standing in groups expressing their concern. The observations were similar: “How can the central government bring a law and negate what a five-judge constitutional bench has interpreted?” “Wouldn’t that be contempt?”
In fact, the Supreme Court had observed that the exclusion of officials from the political executive would render the government incapable of implementing government policies and programs and had delegated the services to the elected government. But has the ordinance violated that order? No. A mere reading of the Ordinance reveals that it is laying down the procedures by which postings, transfers and disciplinary action will be taken against officers and allied matters. It has not tampered with the judgment in any way.
What has the Ordinance of the Center done?
Iron Fist seems to have been used to defeat the beleaguered Chief Minister. If he had harbored hopes of controlling the services (officers), instead he has been rendered inactive – unable to act without the concurrence of the Chief Secretary and the Home Secretary – the other two members of the National Capital Civil Services Authority – Those who can work together also negate what the CM wants. The CM now has the option of going back to the Supreme Court or working within the procedure laid down by the ordinance. He has already opted for the former.
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What does the Ordinance provide?
Broad procedure to be followed in postings, transfers and vigilance matters, including those of All India Services (Indian Administrative Service and Indian Forest Service officers), DANICS officers (similar to State Civil Services) and all other services working under Delhi Government has been set up to deal with. Nowhere does the Ordinance prevent any officer posted in any of the departments (of which there are more than a hundred) from ceasing to assist in the formulation of policies and programs or, once these have been approved, from stalling their implementation.
The Ordinance also does not question the principle of aid and advice. Ergo, it is unlikely that the courts would consider it controversial or require immediate intervention from a judicial perspective.
While in the few hours I have listened to the conversations, the general feeling is that the ordinance is a blatant attempt to stop Kejriwal and his growing popularity, which is evident from the MCD election victory, the apex court’s rejection of the nominated aldermen strategy and more recently. The delay in appointing the chairman of the DERC itself, the justification given in the preamble of the ordinance, is that the capital is the seat of the President, Parliament, Supreme Court and various constitutional functionaries, foreign missions and international agencies. In addition, the city is visited by national and international dignitaries.
Therefore, to quote the Ordinance, it is in the national interest to maintain “the highest possible standards of governance and administration of the National Capital”, and thus (my words) “prevent any occurrence in the Capital which does not can only affect residents, the country or international has the potential to stake national prestige, image, credibility and reputation across the global spectrum.
To quote further from the Ordinance, “It is in the national interest” to maintain, “the highest possible standards of administration and governance of the National Capital” … (related) “any event in the Capital which affects not only the residents Can do, have the potential to put at stake the national prestige, image, credibility and reputation of the country or international global spectrum.
Read also: Decoding the SC verdict on Delhi’s ‘services’ – what power Kejriwal govt has now and what the LG has
dalit and law
Despite all the apprehensions, the common man’s sympathy remains with Kejriwal. ,Don’t let him work.” There is an oft-repeated dialogue between guards, drivers and domestics in a nearby slum and an urban village where I live. But whatever people may feel, it does not mean that the central government has no authority or locus to issue ordinances. Two articles of the constitution undoubtedly allow this. Sub-clauses 3 and 7 of Article 239AA of the Constitution, through which the Government of Delhi was born, stipulate that Parliament may, by law, make provisions for carrying out or supplementing the provisions contained in clauses of Article 239AA . and for all incidental or consequential matters, And this includes item 41 in the State List, which refers to services. The legislative competence is unquestionably available and has already been exercised in the past, for example, by establishing the NCT of Delhi Act in 1991 and amending it in 2015.
Furthermore, Article 73 of the Constitution states that “the executive power of the Central Government shall extend to the matters on which Parliament has power to make laws.” It includes the executive authority of the Center over the Union Territories. Delhi being a Union Territory (though with a legislature), comes under Article 73 of the Constitution.
Read also: Why Delhi L-G’s approval of new service secretary ‘will not benefit’ the elected government
What can CM do?
Given this, as the verdict was announced hours after it came out, what can the Kejriwal government do to “make obstructionist officials face the music”? As it is, very few.
In such a situation, I cannot help remembering the years that I spent in the Delhi Government. It was not an attractive existence and as Chief Secretary I was regularly reprimanded by both the then Lieutenant Governor and the Chief Minister for showing favoritism towards one or the other. But despite the wrangling, there was a shared belief that Delhi should develop, the youth should get the best education and the citizens should have good healthcare and a decent quality of life. In order to achieve those goals, the political differences that came to the fore again and again took second place in Delhi’s interests. Things have changed radically since then. Bullying the elected government on the one hand and maligning the central government on the other has become a recurring theme with the condemnation only increasing by the day.
And the citizen (and voter) of Delhi, while he watches the ping-pong match, is a sly fellow who cares more about paying less – sometimes even zero – for electricity, water and sewage treatment, he Power alliance cares about ongoing Delhi.
In short, promulgation of the ordinance has been an efficient way of side-lining the effect of the Supreme Court judgment without even mentioning it. No matter how infamous the officials, no government can function without bureaucracy. Good officers are needed to implement political assurances. And if the position and control of officers is determined by an authority whose majority members owe allegiance elsewhere, it will not be easy for the political executive of the GNCT of Delhi to find a way out. We live in interesting times.
The writer was formerly Chief Secretary, Delhi and Secretary, Government of India. She tweets @over2shailaja. Thoughts are personal.