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Centre files affidavit justifying ordinance
The Indian government has defended its decision to take control over bureaucrats in the national capital, blaming the Aam Aadmi Party (AAP) government for "anarchy" and "administrative chaos". The government has promulgated an ordinance nullifying a Supreme Court judgment and will introduce the ordinance in the upcoming session of Parliament. The matter may eventually be referred to a Constitution bench of five judges. The Delhi government has opposed the reference and secured a hearing to argue against it. The Centre's decision has caused controversy and allegations of undemocratic behavior.
“Anarchy” and “administrative chaos” in the national capital led the Union government to urgently promulgate an ordinance wresting the control over bureaucrats from the elected Delhi government, the Centre told the Supreme Court on Monday, blaming the Aam Aadmi Party (AAP) government of acting in an “undemocratic” fashion while trying to influence ongoing investigations into several vigilance cases, allegedly involving its ministers.
In an affidavit defending the promulgation of the 2023 Government of National Capital Territory of Delhi (GNCTD) ordinance on May 19, the Centre sought to apprise a bench led by Chief Justice of India Dhananjaya Y Chandrachud that the ordinance will be introduced in the monsoon session of Parliament, starting July 20. The Centre’s ordinance, in effect, nullified a May 11 Supreme Court judgment affirming that the control of bureaucrats in Delhi must remain with the elected government in all but three spheres -- land, public order, and policing.
“The elected government remained arrogant to the official duties of the concerned officers and handled the whole affair in a highly insensitive manner. Such actions in the capital of the nation itself were not only not in conformity with the constitutional provisions, effective model governance, democratic norms but were also reflecting before the global community as immature and undemocratic acts virtually paralysing the nation’s capital resulting in anarchy,” the Centre said in its affidavit, adding these incidents brought embarrassment to India before the international community at a time when India held Presidency of the G20.
Solicitor general Tushar Mehta, representing the Centre, however, submitted that the ordinance is yet to take the final shape and that the top court may defer the adjudication of the Delhi government’s challenge to the ordinance until it is introduced in the upcoming session of Parliament.
Responding, the bench, which also included justices PS Narasimha and Manoj Misra, indicated that the matter may be eventually referred to a Constitution bench of five judges in view of the Centre using a constitutional provision for the first time to regain control over “services”, which it said, amounted to “virtually amending the Constitution”. The court referred to Article 239AA (7) which empowers Parliament to make laws for giving effect to or supplementing the provisions contained in Article 239AA — the provision that guides the administration of Delhi.
The Delhi government did not respond to requests seeking comment on the affidavit.
The Delhi government on Monday opposed the reference and secured a hearing on July 20 to argue against it, even as the bench pointed out that the previous two Constitution bench judgments in 2018 and May 2023 did not deal with Article 239AA (7) or whether this provision can be used by the Centre to take away “services” from the elected government.
A reference to a Constitution bench typically entails long arguments and several days of hearing. The verdict may come after months, keeping the Centre in charge of Delhi’s bureaucracy in the interregnum.
Delhi’s lieutenant governor Vinai Kumar Saxena also filed two separate affidavits on Monday, supporting the Centre’s stand on the ordinance, and accusing the AAP government of “suppressing critical facts” in its petition.
The Centre’s affidavit, meanwhile, maintained that the decision to issue an ordinance without waiting for the next Parliament session was taken in view of “the rapidly developing embarrassing situation” in Delhi, created by AAP ministers, who, it said, humiliated and threatened bureaucrats, and made a “global spectacle” of the Capital by posting about their transfers and inquiries on social media, soon after the May 11 judgment of the top court.
The Centre claimed that within hours of the May 11 verdict, the Delhi government, “in a dramatic and convoluted fashion”, went on a rampage issuing transfer orders of several bureaucrats and posting them on social media.
The central government, therefore, examined the issue keeping in mind the fact that Delhi is the Capital of the nation, and any immature or insensitive act reflects badly the country’s image outside the world, stated the affidavit.
“The President had to issue the ordinance keeping in view the emergent situation of administrative chaos in the Delhi, whereby the administration of the national capital was paralyzed. It was deemed necessary to provide for a comprehensive scheme of administration of services deployed in the functioning of NCTD and other allied issues thereby balancing the local and domestic interests of the people staying in the NCTD with the democratic will of the entire nation reflected through the President of India,” the affidavit stated, adding the Centre has the competence on taking control over state bureaucracy through a legislative route.
Arguing that irreparable harm will be caused to the administration of Delhi if the ordinance is stayed, the Centre further stated that the Delhi government ignored the rationale of the previous two Constitution bench judgments that primary to the administration Delhi is the principle of cooperative governance and that the participation of central government cannot be construed as alien to the principles of governance or an unwarranted interference.
The Centre’s response came to the Delhi government’s petition challenging the ordinance through which the Centre restored to itself the power over bureaucratic postings via a raft of amendments in the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. The ordinance strengthened the position of the LG, making him the final authority who can act in his “sole discretion” in deciding matters relating to transfer and posting of bureaucrats, and introduced a new chapter to create a National Capital Civil Service Authority (NCCSA) and a public service commission for transfers and postings of the officers serving in the affairs of the Delhi government.
Responding to criticism from the Delhi government that the ordinance was issued with the purpose of negating the two Constitution bench decisions of May 11 and July 2018, the Centre cited a spate of events between May 11 and 17 that it said necessitated passing of the ordinance.
Multiple instances of misbehaviour by the Delhi government’s minister handling the services portfolio were reported to the chief secretary and complaints were received by special secretary (vigilance) of investigation files being removed from the chamber of the officers. His office was sealed and two days later, the files were photocopied till late past midnight under the gaze of television cameras, it claimed.
It also said that most of the files with the vigilance department pertained to the alleged excise scam where some top AAP leaders are allegedly involved, besides files pertaining to expenditure incurred in construction of CM’s residential bungalow, funds for political advertisement of AAP, power subsidy to power companies ignoring outstanding dues from electricity distribution companies to the tune of over ₹21,000 crore, and establishment of Feedback Unit by government employing retired intelligence bureau officials.
The Centre described the state of affairs in the Capital from May 11 to May 17 to be a “virtual turmoil”, adding “any delay would not only have paralysed the administration of the national capital but would have embarrassed the entire nation within and outside the country.”
Delhi being the seat of President, Supreme Court, Parliament, and foreign missions, frequently visited by high foreign dignitaries, the Centre said: “It is in national interest that the highest possible standards should be maintained in the administration and governance of the national capital.”
LG VK Saxena’s affidavits sought to address two developments initiated by the Centre under the ordinance to appoint the chairperson of Delhi Electricity Regulatory Commission (DERC) bypassing Delhi government on June 21 and a July 5 order passed by the office of LG scrapping appointment of 437 consultants or specialists in various Delhi government departments.
Saxena said that the issue of removal of consultants had nothing to do with the ordinance but were called in question for being illegal as it did not adhere to the reservation policy for scheduled caste and other backward classes; did not have approval of L-G; the process of selection was fraught with nepotism and favouritism; and the appointed persons were found to indulge in political activity as opposed to the duty assigned to them by the Delhi assembly.
On the DERC chairperson appointment, LG said that the Delhi CM, at no point of time, objected to the appointment of retired Allahabad high court judge Umesh Kumar. He further stated that LG was not bound to act on aid and advice of Delhi government on matters of appointing DERC chairperson after the ordinance.
