In a significant development, the Government of National Capital Territory of Delhi (GNCTD) has filed a writ petition in the Supreme Court challenging the Government of National Capital Territory (Amendment) Ordinance 2023, recently promulgated by the Central Government. The ordinance aims to strip the GNCTD of its powers to control civil servants serving within its jurisdiction.
The legal challenge comes merely a week after a landmark ruling by a Constitution Bench of the Supreme Court, which upheld the Delhi Government’s authority over “services” under Entry 41 of List II. The GNCTD argues that the new ordinance effectively overturns the apex court’s verdict, undermining the principles of federalism and the elected government’s authority.
According to the petition filed through Advocate-on-Record Shadan Farasat, the ordinance violates the federal, democratic governance structure established for the National Capital Territory of Delhi (NCTD) under Article 239AA of the Constitution. The article confers significant powers to the elected government, granting control over officials posted within its domain.
The disputed ordinance proposes a committee comprising the Chief Minister and two senior bureaucrats to make recommendations on the transfer and postings of civil servants. However, the final decision rests solely with the Lieutenant Governor, depriving the elected government of any meaningful control over its civil service.
This is not the first attempt by the Central Government to curtail the GNCTD’s authority. The petition highlights a similar effort made through a 2015 notification, which was later invalidated by the Supreme Court for being unconstitutional. The ordinance is now perceived as a renewed attempt to restore the same undesirable position, circumventing the apex court’s judgment without a constitutional amendment.
Moreover, the Delhi Government contends that the ordinance’s implementation will lead to a manifestly arbitrary situation, rendering the elected government ineffective and governance impossible. By granting overriding powers to civil servants over the elected government, the ordinance could lead to administrative paralysis.
Another ground of challenge presented in the petition is that the ordinance represents an abuse of powers under Article 123 of the Constitution, as it lacks urgency and appears to be driven by a desire to overrule the Supreme Court’s ruling. The timing of the ordinance’s promulgation, just after the court closed for summer vacations, further fuels suspicions of bad faith.
The Delhi Government seeks to have the ordinance struck down, emphasizing that it is impermissible for the legislature to directly overrule a Supreme Court decision without amending the Constitution itself. The case is expected to draw considerable attention as it addresses fundamental principles of federalism and the division of powers between the central and regional governments.
As the legal battle commences, the fate of the GNCTD’s control over its civil service hangs in the balance, raising broader questions about the sanctity of judicial pronouncements and the spirit of democratic governance.