The Modi government in order to restore its hold on the Delhi legislature and its executive functioning has got the President of India to promulgate an Ordinance that effectively nullifies the Supreme Court’s Constitutional Bench decision. The judgement of the constitutional bench clearly demarcates the powers and responsibilities between Delhi government and the Union government considering the special status that Delhi enjoys constitutionally. However, the present ordinance promulgated 19th May gives the Lieutenant Governor the final say on postings and transfers of Delhi bureaucrats thereby denying the elected government of Delhi the power and responsibility authorised by the constitution and the constitutional bench decision.
The Government of National Capital Territory of Delhi Act, 1991 was amended through the ordinance and a ‘National Capital Civil Services Authority’ is setup headed by Delhi Chief Minister, Chief Secretary of Delhi, and Principal Home Secretary of Union government. This body will take decisions regarding postings and transfers of bureaucrats serving in national capital through a majority voting system. This body in turn will recommend the decision to LG, who in turn will decide whether to accept or reject the proposal. In case there is a difference of opinion, the final say lies with the LG.
The Supreme Court had emphasised that the governance of states is not to be taken over by the Union government, while confirming that the control over administrative services – barring those related to public order, police, and land – in the national capital belonged to the government of the national capital territory of Delhi.
Incidentally the Supreme Court, while reiterating that the principles of federalism constitutes a part of the basic structure of the Constitution, observed that the Union and State governments are elected by ‘We the People’ in two separate electoral processes, and are a dual manifestation of the public will. Having observed so, the Supreme Court emphatically held that: “Article 239AA which conferred a special status to the national capital territory of Delhi and constitutionally entrenched a representative form of government was incorporated in the Constitution, in the spirit of federalism, with the aim that the residents of the capital city must have a voice and how they are to be governed. It is the responsibility of the government of the NCTD to give expression to the will of the people of Delhi who elected it. Therefore, the ideal conclusion would be that GNCTD ought to have control over services, subject to exclusion of subjects which are out of its legislative domain.”
The Union Government's Ordinance is in direct contravention of the Supreme Court judgement, and is clearly a blatant attempt to undermine the separation of powers and the duty of the judiciary.
We have seen time and again how the LGs and Governors appointed by Modi government have worked overtime against people's interests and in scuttling of democratically elected government in opposition ruled states. The logjam in Delhi, is a result of the overzealous LG, who time and again has stalled decisions taken by the Delhi Government. It has become clear that, where ever BJP loses, it is using the Governors and LGs to scuttle governance and destroy democracy.
This act of promulgating the ordinance at a time when Supreme Court has asserted the principle of federalism clearly shows BJP's blatant disregard to the constitutional principles and judicial institutions of the country. In its vulgar pursuit of power, the Modi government, has yet again sacrificed the genuine aspirations of the people of Delhi, which CPIML strongly opposes. It is in the interest of the people that Union Government immediately withdraw this Ordinance and respect the wishes of the people.