Central Ordinance on Delhi services: Another round of legal battle in the offing?

The power tussle between the Arvind Kejriwal-led Delhi government and the Centre over the control of legislative and executive powers of services seems to be entering into another round of legal battle. After the Centre brought an Ordinance on Friday to overturn the Supreme Court’s recent verdict, which upheld the Delhi government’s authority in the services matter, Delhi Chief Minister Arvind Kejriwal has announced to move the SC against it.

“They were waiting for the Supreme Court to be closed for summer vacations. They waited because they know this ordinance is illegal. They know it will not stand in the court for 5 minutes. When SC opens on July 1, we will challenge it,” Kejriwal said on Saturday.

The Aam Aadmi Party has called the Centre’s move as “unconstitutional”.

The ordinance was issued in response to the Supreme Court verdict on May 10 that affirmed the control of the Delhi government over the transfer and posting of bureaucrats assigned to departments under its jurisdiction. The apex court held that elected state governments, including the Delhi government, should have control over all services, including Indian Administrative Service (IAS) officers, except in matters relating to land, police, and law and order.

On Saturday the Central government also moved the Supreme Court against the May 10 verdict of the Constitution bench, according to a Live Law report.

On Friday, the Centre promulgated the Ordinance to create a National Capital Civil Service Authority for the transfer of Group-A officers from the DANICS cadre and any disciplinary proceedings against them.

The Authority will be headed by Delhi CM while Chief Secretary and Principal Home Secretary will be the members. The decisions on the transfer and tenure of the officers will be decided by the majority of votes of the three-member body. The LG will have the power to accept the recommendations of the authority or he can return the file.

The ordinance grants overriding powers to the Lieutenant Governor (LG) of Delhi, which conflicts with the Supreme Court's judgments on the powers of the Delhi government.

The ordinance's provisions contradict the Supreme Court's interpretation of Article 239AA, which outlines the governance structure for the NCT of Delhi. The Ordinance is said to be against the principles of representative democracy, federalism, and accountability, according to legal experts.

The Supreme Court had clarified that Part XIV of the Constitution, which regulates the employment of persons in public services, applies to Union Territories, including Delhi.

Parliament can pass laws to undo the effect of a Supreme Court judgment through an Act. However, such laws must address the underlying reasoning of the court and cannot simply contradict the judgment.

The Delhi government may argue that nullifying the Supreme Court's verdict requires a constitutional amendment rather than a mere amendment to the statutory law.

Parliament cannot enact laws or amendments that violate the basic structure of the Constitution. The impact of the ordinance on the basic structure and the concept of federalism could be a ground of challenge in the SC.