AA Edit | Centre ordinance on Delhi is an open challenge to SC

The Centre is free to annul the effect of a Supreme Court judgment through parliamentary enactment, but it is unusual for the Government of India to seek to make a judgment of a five-member Constitutional Bench of the top court meaningless by resorting to an ordinance. This is exactly what has happened in the case of the Supreme Court judgment of May 11 on the question of who should exercise control over the civil servants — their transfer, posting and the matter of vigilance on their action — that run the administration of the Union Territory of Delhi.

A five-judge bench presided over by the Chief Justice of India had decided that legislative and executive control over administrative services in the UT should squarely be the preserve of the duly elected government of Delhi. This flows from the National Capital Territory of Delhi Act, 1991 which allows the UT government full-fledged control over all department of administration other than land, public order and police. These three are the Centre’s domain.

In explicit language, the judgment states that in a democratic order the elected government will not be able to discharge its responsibility to the legislature, which represents the will of the people, if the government lacks the power to hold accountable the civil servants who run the administration. The Constitution Bench judgment held that the Lieutenant Governor (L-G) shall be bound by the decision of the Delhi government over the services that lie in its jurisdiction. 

Evidently, the Centre did not deem this a reasonable principle. On May 20, it moved the Supreme Court (incidentally, after the court had gone into its summer recess!) to review its May 11 judgment. The ground it cited was that any decision in respect of the national capital affects not only the people who reside in it but also impacts “national reputation, image, credibility and prestige” in the international arena. However, a day earlier, on May 19, it had already passed an ordinance — or executive order — to constitute the “National Capital Civil Services Authority” which has the effect of annulling the Supreme Court judgment passed only eight days earlier.

It is for the apex court to determine how to view the open challenge posed to its prestige and authority by the Narendra Modi government. It is one thing for the Centre to urge the top court to change its order, quite another to make that plea after passing an executive order that jettisons the judgment of the constitutional court without ado. The impression conveyed is that the Government of India would brook no restraint from any quarters whatever, including the Supreme Court. It is ironical that the Centre’s fiat has come only days after the previous law minister, who seemed to be getting too big for his boots and was practically badmouthing the higher judiciary every other day, was divested of his charge, presumably for seeking to reduce the dignity and continually questioning the authority of the Supreme Court.

The dissonance between the AAP government in Delhi since 2015 and the Modi government since it first came into being a few months earlier in 2014 has basically been about control over the bureaucrats who run Delhi, although, on account of the chief minister Arvind Kejriwal’s ultra-populist style, it has played out as a running fight between the CM and the L-G, who represents the Centre in the UT.