|Introduction: Give a brief background of the ordinance|
Body: Highlight the main features and their impact on federalism.
Conclusion: Conclude the answer on a positive note.
Recently, a constitution bench led by CJI upheld the claim of the elected government of Delhi to make laws and administer civil services in Delhi barring three specific areas- public order, police, and land. In response to this judgement, the President of India promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 which restores the previous position where the Lieutenant Governor (LG) was given power over the appointment of bureaucrats.
What are the features of this ordinance?
- National Capital Civil Service Authority (NCCSA) is formed with the Chief Minister as chairperson, and the Chief Secretary and Principal Home Secretary as Member and Member Secretary.
- NCCSA exercises authority over bureaucrats working with the Government of Delhi except for those officers who are in public order, police, and land departments where ultimate control lies with the Centre.
- NCCSA would decide transfers, postings, prosecution sanctions, disciplinary proceedings, vigilance issues, etc, of civil service officers, deputed to Delhi government departments.
- All the decisions of the authority are decided by a majority of votes of the members present and voting.
- In case of a difference of opinion, Lieutenant Governor’s decision would be final.
Impact of the Ordinance on the federal structure of Delhi
- Constitutional Provision: The ordinance impacts Article 239AA which provides the elected government a clear say in the institutional governance of Delhi and gives bureaucrats a prominent role in the governance of Delhi.
- Accountability: Officers appointed would be accountable to Union Government and not to the Chief Minister of Delhi who represents the “will of the people”.
- Cooperative Federalism: The ordinance would impact the principle of cooperative federalism and state government would become wary of the extensive power given to LG/Governors by the Union Government.
- Challenges authority of courts: The ordinance challenges the authority of the Supreme Court and impacts the federal structure of the Constitution where the Supreme Court has the final say in interpreting the Constitution.
- Asymmetric model of federalism: The ordinance challenges the asymmetric model where under Article 239AA, the Government of National Capital Territory of Delhi represents the will of people at the regional level and the union government at the national level.
- Parliamentary democracy: The power to veto a decision of the Chief Minister in the National Capital Civil Service Authority (NCCSA) goes against the principle of parliamentary democracy.
There should be active cooperation between the Union and Delhi Government to resolve the issue of deadlock to provide accountable, democratic governance under the Constitution of India. It should also be kept in mind that the power to promulgate ordinance should be used in emergencies and not to achieve political ends as highlighted in DC Wadhwa versus the State of Bihar.