Central Idea

• The central government issued an Ordinance on May 19, overturning a unanimous Supreme Court verdict.
• The Ordinance grants the Lieutenant Governor of Delhi authority over services, challenging the elected government’s control over officials’ transfer and posting.
• This raises constitutional concerns about the balance of power between the elected government and the Lieutenant Governor.

Issues with this ordinance

• The Ordinance bestowed power over services to the Lieutenant Governor of Delhi.
• It established the “National Capital Civil Service Authority,” consisting of the Chief Minister and two senior IAS officials, to decide matters by majority vote.
• This provision potentially allows the elected Chief Minister’s viewpoint to be overruled.

Key issues with the current model of Governance of Delhi

• Undermining the elected government: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
• Lack of Executive Accountability: The Lieutenant Governor, who is the head of government, is not accountable to the assembly, which undermines the principle of executive accountability.
• Against the privilege of legislature: Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.
• Delay in decision-making: The requirement for LG’s approval for many decisions has led to delays in decision-making, which has impacted the development and governance of the city.
• Accountability issues: The division of responsibilities between the elected government and the Lieutenant Governor has led to difficulties in fixing responsibility for actions and decisions.
• Against Co-operative Federalism: The Act not only negates cooperative federalism but also upturns the fundamental principles laid down by the Supreme Court in Government of NCT Delhi vs Union of India case (2018).
• Control over Services Department: Governance has always been a contentious issue since Delhi is not a full state and the Services department comes under the L-G.

What is Ordinance?

• Under Article 123 of the Constitution, the President possesses law-making powers through the issuance of ordinances during the recess of Parliament.
• Article 213 grants the Governor of a state the authority to issue ordinances when the state legislative assembly or either of the two Houses (in states with bicameral legislatures) is not in session.
• However, there are limitations to this authority:

1. Issuance during Recess: The President can only promulgate an ordinance when one or both Houses of Parliament are not in session.
2. Immediate Action: An ordinance can only be issued when the President deems it necessary for immediate action.
3. Justiciability: The President’s intentions to issue ordinances can be subject to judicial review if mala fide intentions are proven.

Features of Ordinances

Several characteristics and provisions are associated with ordinances:

• Retrospective Effect: An ordinance can have a retrospective application, meaning it can be enacted prior to its approval.
• Nullity during Parliamentary Session: An ordinance issued while Parliament is in session is considered null and void.
• Time Limit for Approval: An ordinance must be approved by Parliament within six weeks of its reassembly. Failure to do so leads to its expiration.
• Continuation of Acts and Laws: Acts, laws, and events resulting from the ordinance remain in effect until its expiration.
• Limits on Legislative Authority: Ordinances can only be passed on subjects within the legislative competence of the Indian Parliament.
• Protection of Fundamental Rights: Ordinances cannot be used to revoke the fundamental rights guaranteed by the Indian Constitution. Their enforcement would render them null and void if both Houses pass a resolution opposing them.

Issues with the Ordinances

The use of ordinances has raised concerns regarding their potential misuse and circumvention of democratic processes. Some key concerns are:

• Bypassing the Legislature: Deliberate bypassing of the legislature to avoid debate and deliberation on contentious legislative proposals undermines democratic principles.
• Repromulgation of Ordinances: Repromulgation without placing the ordinance before the legislature subverts democratic legislative processes and the separation of powers.
• Presidential Satisfaction: The satisfaction of the President as a requirement for issuing an ordinance provides scope for potential misuse.
• Ignoring Supreme Court’s Judgments: Instances of ordinances being promulgated despite Supreme Court judgments highlighting their conditional and exceptional nature raise concerns about adherence to constitutional principles.

Judicial Safeguards to avoid re-promulgation of ordinances

1. Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
2. It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
3. Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.

Way ahead

• Every ordinance issued must be laid before both the Houses of Parliament or state legislature within six weeks from the reassembly of Parliament or state legislature and it ceases to exist if it is not approved within six weeks of reassembly.
• 44th Constitutional Amendment has reiterated that the satisfaction of the President to promulgate ordinance could be challenged in case an ‘immediate action’ was not required.
• Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature.
• The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.

Conclusion

• The recent Ordinance and its constitutional implications highlight the need for a balanced distribution of powers between the elected government and the Lieutenant Governor in Delhi.
• It is essential to uphold democratic principles and ensure that legislative functions are carried out by the appropriate constitutional authorities.
• A comprehensive review of the governance framework in Delhi may be necessary to address these concerns and ensure effective and harmonious governance in the capital city.

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