The Hindu Editorial Analysis- 5th June 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

The Delhi ordinance is an unabashed power-grab

Context: The President of India exercised legislative power under Article 123 of the Constitution to promulgate The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023.

 Need to promulgate the Ordinance: The Ordinance negates a Constitution Bench judgment of the SC, that brought “services” under the Government of National Capital Territory of Delhi (NCTD).

The scope of the Court’s verdict:

• While interpreting Article 239AA(3)(a), the Court ruled that the Legislative Assembly of the NCTD has jurisdiction over entries in List II (The State list) and List III (The Concurrent list), except three entries in List II (public order, police, and land).
• The Union of India has executive power only over these three entries in List II over which the NCTD does not have legislative competence.
• Consequently, executive power over “services” (List II) can be exercised exclusively by the Government of the NCTD.

• Creation of National Capital Civil Service Authority (NCCSA):
  • It will be headed by the CM of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi being the other two members.
  • It will make recommendations to the Lieutenant Governor (LG) regarding the transfer, posting, vigilance and other incidental matters wrt to AISs and DANICS serving the Delhi government.
  • All matters are required to be decided by a majority of votes. This means that the decision of the elected CM can be overruled by the two senior bureaucrats.
• Role of LG:
  • The L-G will pass orders to give effect to the recommendations passed by the NCCSA.
  • In case the L-G differs from the recommendation made, s/he may return the recommendation for reconsideration by the NCCSA. Therefore, the final decision will lie with the LG.

Changes brought by the Ordinance: It inserted “services” of List II into Article 239AA(3)(a), thereby expanding the scope of matters (under the control of the Union) from 3 to 4.

Conclusion

 The Union of India’s decision to prefer review (Article 137) and promulgate an ordinance (Article 123) simultaneously is ill-conceived.