The legislative subjects contained in item 41 of the State List in the Seventh Schedule of the Constitution are State Public Services and State Public Service Commission. The States have exclusive power to legislate on any of these subjects. Article 239AA, which confers a special status on 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 the Assembly and the Government of Delhi. However, the Union government, through a notification issued in 2015, excluded ‘services’ from the legislative as well as administrative jurisdiction of Delhi government. But the Constitution Bench of the Supreme Court held in its judgment delivered on May 11 that services come under the jurisdiction of the Delhi Assembly and, therefore, the Delhi government has absolute control over it.
The Union government came out with an ordinance within days of the judgment, nullifying the Supreme Court’s order. Through this ordinance, the Union government has not only taken away services from the Delhi government, but made some far-reaching structural changes in the relationship between the Delhi government and the Lieutenant Governor (LG), who is the representative of the Union government.
Nullifying SC judgment
The Supreme Court held in its judgment that the LG is bound to act on the aid and advice of the Council of Ministers except in respect of Police, Public Order, and Land. The ordinance nullifies this order by making the LG the sole authority to take a final decision on all matters which come up for the consideration of the government. The Union government seems to believe that Delhi has been given a special status by amending the Constitution with the sole aim of making the LG the supreme ruler.
Reading this ordinance is a great experience. It starts with an unusually lengthy preamble explaining the background to the ordinance. The Supreme Court gave services back to Delhi because the court felt that no government can function without having complete control over the bureaucracy. The Delhi government could not have discharged its responsibility to the people of the city unless its officers act in obedience to the government. Even a judgment by a Constitution Bench which explained in detail the constitutional requirement for the officers to be accountable to the elected government did not deter the Union government, which lost no time in bringing out the ordinance to nullify the Supreme Court’s judgment.
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The ordinance raises a question of grave importance. Can Parliament nullify a judgment of the Supreme Court? The answer to this question has been given by the Supreme Court in a number of judgments. In Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality (1969) 2 SCC 283, the Supreme Court held: “Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A court’s decision must always bind, unless the conditions in which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.” The point the court has emphasised is that the legislature does not possess judicial power, which alone can nullify a court’s order.
In People’s Union of Civil Liberty vs Union of India (AIR 2003 SC), the Supreme Court has reaffirmed this point in the following words: “ A declaration that an order made by a Court of Law is void is normally a part of the judicial function. Legislature cannot declare that a decision given by the Court is not binding or is of no effect. It can change the basis on which a decision is given by the Court, but it cannot review and set at naught such a decision.”
Now, let us look at the relevant provisions of the ordinance which nullify the Supreme Court’s judgment. The ordinance adds a new section (Section 3A) to the Government of the National Capital Territory Act, 1991 (GNCTD Act), which says, “notwithstanding anything contained in any judgments, order or decree of any court” the Legislative Assembly shall not have the power to make laws on any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution. This section nullifies the decision of the court, namely, that ‘services’ will remain with the Delhi government.
The decision of the court is based on Article 239AA (3), which says that all matters in the State List except Police, Public Order, and Land will be within the legislative jurisdiction of the Delhi Assembly. Since executive power is co-extensive with legislative power, the government can exercise its executive power on all matters on which the Assembly can make law. But Section 3A does not indicate the basis on which this section was introduced. In the absence of such a basis, this section falls foul of the Supreme Court judgment. According to the court, any legislation made to nullify a court’s judgment without changing the basis of the judgment is invalid. Thus, we can see that Section 3A is invalid on this ground.
Highlights
- State Public Services and State Public Service Commission are on the State List in the Seventh Schedule of the Constitution.
- A Constitution Bench of the Supreme Court held in its judgment delivered on May 11 that services come under the jurisdiction of the Delhi Assembly.
- The Union government came out with an ordinance within days of the judgment, nullifying the Supreme Court’s order.
A novel proposal in the Ordinance
The ordinance contains a novel proposal for setting up a National Capital Civil Services Authority to make recommendations on transfers and postings, and also disciplinary matters involving IAS and The Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) officers. This authority will be chaired by the Chief Minister and its members will be the Chief Secretary and the Principal Home Secretary. Since all decisions are taken by majority, in effect, the Chief Secretary and the Home Secretary will make all the recommendations and the Chief Minister will always be in a minority. The recommendations of the Authority will be submitted to the LG, whose decision shall be final.
Actually it is not clear how the Chief Minister can be made a part of an authority whose duty is to recommend transfers and postings when services have been taken away from the government. In fact, after the ordinance the Delhi Government is debarred from dealing with four subjects, namely, Police, Public Order, Land, and Services, whereas Article 239AA(3) exempts only Police, Public Order, and Land. Depriving the State government of its authority over Services is ultra vires the Constitution and, hence, invalid.
“The LG acts on the aid and advice of the Council of Ministers and, therefore, is bound to act in accordance with the government’s advice.”
The ordinance contains another curious provision which covers the summoning, prorogation and dissolving of the Assembly. Summoning a session of the Assembly is a function of the LG under Section 6 of the GNCTD Act, 1991. The procedure in this regard is well settled. Parliament and State legislatures follow the same practice in respect of summoning and proroguing the House. The decision to call a session is taken by the Cabinet headed by the Chief Minister. It is, in fact, the prerogative of the Cabinet to call the session of a legislature. After the Cabinet has taken the decision, it is communicated to the LG by the Assembly Secretary. Thereupon, the LG issues summons. Here, the LG is acting on the aid and advice of the Council of Ministers and, therefore, is bound to act in accordance with the government’s advice.
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The ordinance seeks to introduce a new procedure in this regard. Section 45 J (I) (4) (ix) says that a proposal shall be submitted through the Chief Secretary to the LG and the Chief Minister for their ‘opinion’ before issuing any orders. First, it is not clear why the opinion of the LG and the Chief Minister are sought when the Chief Minister is the decision maker in this regard and the LG acts in accordance with the decision of the Cabinet. Secondly, the words “before issuing orders thereon” create so much confusion. What orders are being referred to when the issue of summons is involved? In fact, needless confusion has been created when the whole procedure relating to summoning of the House remains well settled.
A strange provision
Another strange provision is Section 45 K (3), which says the Secretary to the Council of Ministers has the power to scrutinise the decision of the Cabinet and in case he finds that any decision of the Cabinet is against any Act or Rules, he will straightaway report the matter to the LG for his decision thereon. This provision makes the aid and advice doctrine stand on its head. A great amount of uncertainty has been brought into the decision-making process by the Cabinet through this provision.
It is baffling that the legislative power of the President under Article 123 of the Constitution has been invoked to take away the routine powers of the local government to transfer and post officials working under it. It is a normal administrative job of any government. Denying it that power through an ordinance is unthinkable in a democracy. It is against the Constitution which vests this power in the local government.
P.D.T. Achary is former Secretary General, Lok Sabha.
