Introduction of Delhi ordinance in RS is impermissible: Chadha
New Delhi: Aam Aadmi Party (AAP) MP Raghav Chadha wrote to Rajya Sabha Chairman Jagdeep Dhankhar on Sunday, urging him not to allow a bill that seeks to replace the Centre’s ordinance on control over administrative services in Delhi to be introduced in the Upper House of Parliament.
In his letter to Dhankhar, Chadha termed the Bill “unconstitutional” and urged the Rajya Sabha chairman to direct the Bharatiya Janata Party-led Centre to withdraw it and “save the Constitution”.
The bill seeking to replace the ordinance is likely to be introduced by the Centre in Parliament during the ongoing Monsoon session.
The Centre had, on May 19, promulgated the ordinance to create an authority for the transfer and posting of Group-A officers in Delhi, a week after the Supreme Court handed over the control of services in the national capital, excluding police, public order and land, to the elected city government.
The ordinance seeks to set up a National Capital Civil Service Authority for the transfer of and disciplinary proceedings against the Group-A officers from the Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) cadre.
Transfers and postings of all Delhi government officers were under the executive control of the lieutenant governor before the May 11 verdict of the apex court.
“A Constitution bench of the Supreme Court unanimously held that as a matter of constitutional requirement, the civil servants serving in the Government of NCT of Delhi are answerable to the elected arm of the government i.e. the elected council of ministers presided over by the chief minister,” Chadha said in his letter to Dhankhar.
This link of accountability was held to be “crucial” to a democratic and popularly accountable model of government, he added.
However, in one single stroke, the ordinance has undone this model by seizing this control again from the duly elected government of Delhi and vesting it in the hands of the L-G, the Rajya Sabha
“The ordinance’s design is evident i.e. to strip the Government of NCT of Delhi down to only its elected arm — enjoying the mandate of the people of Delhi, but bereft of the governing apparatus necessary for meeting that mandate,” he alleged.
This has left the Delhi government “in a crisis of administration, put day-to-day governance in jeopardy and led the civil service to stall, disobey and contradict the elected government’s orders,” Chadha claimed.
Terming the ordinance “blatantly unconstitutional”, he contended that the Bill seeking to replace it is “impermissible” on the face of it as by seeking to take away the control over services from the Delhi government, contrary to the apex court’s decision, the ordinance has lost its legal validity.
No law can be made to nullify the court’s decision without changing the basis of that decision, Chadha argued.
“The ordinance does not change the basis of the Supreme Court’s decision, which is the Constitution itself,” he said.
Chadha noted that Article 239AA(7)(a) of the Constitution empowers Parliament to frame a law to “give effect to” or “supplement” the provisions contained in Article 239AA.
“Under the scheme of Article 239AA, control over ‘Services’ lies with the Delhi government. A Bill in line with the ordinance is, therefore, not a Bill to give effect to or supplement Article 239AA, but a Bill to damage and destroy Article 239AA, which is impermissible,” he contended.
“In conclusion, any law which the Parliament may make needs to supplement the provisions of Article 239AA and for only matters incidental or consequential to those provisions. Therefore, the proposed Bill which contains provisions contrary to the provisions of Article 239AA is not a valid exercise of the Parliament’s legislative competence,” the AAP leader said.
Thus, the Bill is unconstitutional and the Upper House cannot consider it, he contended.
“I would therefore request you to not permit the introduction of this Bill and direct the government to withdraw it and save the Constitution,” Chadha said in his letter to the Rajya Sabha chairman.
Given that the ordinance is under challenge in the apex court, it will be proper to await the outcome of the decision before introducing the Bill, he added.