ORDINANCES - POLITY

News: With its ordinance, Centre challenges Supreme Court and undermines federalism

 

What's in the news?

       The recent judgment of the Supreme Court holding that the Government of NCT of Delhi has the executive and legislative control over “administrative services” has ruffled some feathers in the national capital.

 

Key takeaways:

       The effect of the judgment of the Supreme Court has been nullified by the promulgation of this ordinance.

       This ordinance has altered the fine balance envisaged in Article 239AA of the Constitution in favour of the Union government.

 

Supreme Court Judgement:

       The Supreme Court held that the executive and legislative powers in relation to “administrative services” under List II Entry 41 of the Seventh Schedule of the Constitution can be exercised by the Delhi government since there is no law passed by Parliament conferring such power on the Lieutenant-Governor (L-G) or the Union government.

 

Ordinance:

National Capital Civil Service Authority (NCCSA):

       The judgment was followed up almost immediately by an ordinance that created the National Capital Civil Service Authority (NCCSA) constituting the Chief Minister of Delhi, Chief Secretary of Delhi and Principal Home Secretary of Delhi.

       This authority has been tasked with the responsibility of recommending transfers, postings and matters concerning the vigilance of Group ‘A’ officers serving in the affairs of the Government of National Capital Territory of Delhi.

       The files regarding transfers, postings, etc of such officers are then placed before the L-G who shall either give effect to the recommendation or send it back to the Authority for reconsideration.

 

Upper hand to L-G:

       If a difference of opinion crops up between the Authority and the L-G, the decision of the L-G is said to be final and binding on all.

       Therefore, the effect of the judgment of the Supreme Court has been nullified by the promulgation of this ordinance. This ordinance has altered the fine balance envisaged in Article 239AA of the Constitution in favour of the Union government.

 

Go back to basics:

Ordinances:

       Under Article 123 of the Constitution (“Power of President to promulgate Ordinances during recess of Parliament”), “if at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.”

 

Advice of Council of Ministers:

       The President acts on the advice of the Council of Ministers, it is in effect the government that decides to bring the Ordinance.

       The President may return the recommendation of the Cabinet once if she feels it warrants reconsideration; if it is sent back (with or without reconsideration), she has to promulgate it.

 

Power of Parliament:

       An Ordinance “shall have the same force and effect as an Act of Parliament”.

       The government is required to bring an Ordinance before Parliament for ratification and failure to do so will lead to its lapsing “at the expiration of six weeks from the reassembly of Parliament”.

 

Lapse of Ordinances:

       The Ordinance may lapse earlier if the President withdraws it or if both Houses pass resolutions disapproving it. (Rejection of an Ordinance would, however, imply the government has lost majority).

       If an Ordinance makes a law that Parliament is not competent to enact under the Constitution, it shall be considered void.

 

Validity of Ordinances:

       An Ordinance is valid for six weeks, or 42 days, from the date on which the next session starts. If the two Houses start their sessions on different dates, the later date will be considered, say the explanations in Articles 123 and 213.

 

Ordinance in State:

       Article 213 deals with the broadly analogous powers of the Governor to promulgate/ withdraw an Ordinance when the state legislature is not in session.