The legality of Delhi Ordinance

Context: Despite the Supreme Court ruling in favour of the Delhi Government over control of services including the transfers and postings of its officers, the Union Government has introduced an ordinance under Article 123 of the Constitution of India to bypass the judgment as it re-empowers the Centre over the services under Delhi Government.

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Ordinance Constitutes National Capital Civil Services Authority’ (NCCSA)

  • The Central Government has issued an ordinance to constitute ‘National Capital Civil Services Authority’ in Delhi. 
  • As per the ordinance, the authority will be headed by Delhi Chief Minister, and will comprise of Chief Secretary and Home Secretary of the Delhi government. 
  • The authority is to now decide on the transfer and posting of Group ‘A’ officers and DANICS officers serving in Delhi government. 
  • NCCSA shall decide matters before it through majority of votes of its members present and voting. 
  • The stated authority will give effect to the intent and purpose behind Article 239AA and that it is being introduced to make recommendations to the Lieutenant Governor (LG) regarding matters concerning transfer posting, vigilance, and other incidental matters. 

Other provisions of the Ordinance

  • It introduced a new procedure for summoning and proroguing a session of the Assembly.
  • The proposal for convening the Assembly shall be submitted through the Chief Secretary to Lieutenant Governor and Chief Minister for their ‘opinion’ before issuing the summons.

Judgement with respect to Ordinance

DC Wadhwa vs. State of Bihar, 1987: SC said that the legislative power of the executive to promulgate Ordinances is in the nature of emergency power and is to be used in exceptional circumstances and not as a substitute for the law-making power. 

Why frequent resorting to Ordinance Route? 

  • Reluctance to face the legislature on particular issues. 
  • The government may face difficulty in obtaining the required majority or consensus in Parliament to pass particular legislation. 
  • Repeated and willful disruption by opposition parties. 
  • Sometimes, the government may need to implement certain policies or reforms within a specific timeframe. Issuing an ordinance allows the government to expedite the implementation process.

Issues on Excessive Use of Ordinance 

  • The executive’s power to issue ordinances goes against the Philosophy of separation of powers between the Legislature, Executive and Judiciary 
  • It bypasses the democratic requirements of argument and deliberation. 
  • Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred on the President and the Governors. 
  • It poses a threat to the sovereignty of Parliament and the state legislatures which have been constituted as primary lawgivers under the Constitution. 

The Constitution has provided for the Separation of Power where enacting laws is the function of the legislature. The executive must show self-restraint and should use ordinance-making power only as per the spirit of the Constitution and not to evade legislative scrutiny and debates. 

UPSC Mains 2022 (GS II)
Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature. (Answer in 250 words)

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