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Battle Royal

By ignoring the apex court’s order and introducing the Authority, the centre has triggered a constitutional crisis, which goes against the spirit of democracy, federalism and rule of law.
06:17 PM May 26, 2023 IST | India Legal
battle royal

The recent attempt by the centre to usurp judicial powers is not the first time this has happened. Overturning decisions taken by constitutional courts was also seen in the case of Indira Gandhi and Raj Narain where the Allahabad High Court was hearing a petition challenging her election for violating the election code enshrined in the Representation of the People Act of 1951.

The High Court ruled that the prime minister had violated election laws and set aside the election. The apex court was on vacation at that time and hence, a conditional stay was granted and subsequently, Emergency was announced. In the meantime, the Indira Gandhi government promulgated the 39th Constitutional Amendment, enshrining Article 392A. The Article stated that the election of the prime minister and Speaker cannot be questioned in any court of law, it can only be challenged before a committee formed by Parliament itself.

Similarly, on May 19, 2023, the Union government promulgated an ordinance extending the powers of Delhi’s Lieutenant-governor (L-G) over services in the administration of the national capital. It thereby sought to undo the unanimous decision of the Constitution bench of the apex court which held that the Delhi government holds power over administrative services.


In 1991, the 69th amendment of the Constitution introduced Article 239AA which granted special status to Delhi amongst other Union Territories (UTs), providing it with a legislative assembly and a council of ministers. The present situation is that NCT of Delhi has three sets of elected bodies—the central government (with the L-G being the administrator); elected representatives (MLAs) in the Delhi assembly and elected representatives (mayor and corporators) of municipal bodies where the administrative control is in the hands of commissioners appointed by the centre.

The conflict began in 2013, when the Aam Aadmi Party took power in Delhi. Even though Delhi is a UT, Article 239AA accords it exceptional status by establishing its legislative assembly, as well as its chief minister and council of ministers—features generally reserved for states. However, because Delhi is a UT, it also has a designated administrator in the form of the L-G.


The 69th Amendment Act of 1991 had added Article 239AA to the Constitution and allowed it to grant Delhi special status in response to the recommendations of the S Balakrishnan Committee. The panel was formed in 1987 to investigate Delhi’s requests for statehood. Except for police, public order and land, the assembly “shall have the power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories” subject to the provisions of the Constitution, it said.


Confusion emerged because of the unique connection between these two government chiefs and the degree of their control over the NCT of Delhi. In 2018, a five-judge Supreme Court Constitution bench declared that the L-G was bound by the help and advice of Delhi’s council of ministers.


But in order to maintain a hold over the national capital, the Union passed the Government of National Capital Territory of Delhi (Amendment) Act, 2021, which prohibited the Delhi assembly from discussing day-to-day administration of the capital. The Delhi government opposed the Act because it transferred the power of its civil servants from itself to the L-G, representing the Union. The Delhi government maintains that it cannot implement policies in the NCT because the civil officials tasked with carrying them out are outside its control. They further claim that the Act undermines the role of Delhi’s elected government, infringing on fundamental constitutional principles such as federalism, democracy and the rule of law.

For about eight years, a legal dispute continued between AAP and the centre. There was a lot of political drama that followed. A five-judge Constitution bench finally settled the matter, but the ordinance moved by the centre recently has again brought the matter under controversy. By ignoring the apex court’s order that the Delhi government will take over services and introducing an ordinance to establish the National Capital Civil Services Authority in Delhi, the Modi government has triggered a full-fledged constitutional crisis. The Supreme Court will be disgraced if it does not respond and damned if it does.


The Authority will be led by Delhi’s chief minister and would include the chief secretary and home secretary. The ordinance bars the Delhi assembly from promulgating any laws on any matter related to Entry 41 of List II of the Seventh Schedule of the Constitution, thereby barring the state government from making any laws on “State public services; State Public Service Commission”.

The centre’s notifications reads: “The central government, in consultation with the authority, shall determine the nature and the categories of officers and other employees required to assist the authority in the discharge of its functions and provide the authority with such officers and employees, as it may deem fit.” Furthermore, the ordinance empowers the centre to make rules on tenure, salary and allowances and other working conditions of officers and other employees posted and employed in Delhi. The National Capital Civil Service Authority has “to make recommendations to the Lieutenant Governor (L-G) regarding matters concerning transfer posting, vigilance and other incidental matters”. The Authority is supposed to take its decision on the basis of a majority where two bureaucrats could overrule the chief minister. Even if the recommendation is sent to the L-G, he has the power to return it to the Authority for reconsideration. “In case of difference of opinion, the decision of the Lieutenant Governor shall be final,” the ordinance reads.

The centre has always been trying to take control over the services of Delhi. In February 2019, a bench, comprising Justices AK Sikri and Ashok Bhushan, had given dissenting opinions on the issue of “services” and the matter was referred to a three-judge bench, which then referred it to a Constitution bench on May 6, 2022.

The five-judge Constitution bench, comprising Chief Justice of India DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli and PS Narsimha allowed the Delhi government to control the administration of services except in specified areas pertaining to public order.

Chief Justice Chandrachud said: “The legislative and executive power of the Government of National Capital Territory of Delhi (GNCTD) over entry 41 shall not extend over to services related to public order, police and land. However, legislative and executive power over services such as IAS or joint cadre services, which are relevant for the implementation for the policies and the vision of NCTD in terms of day-to-day administration of the region shall lie with the NCTD.”

The Constitution bench reiterated the principle of federalism, saying: “If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted.” It added: “The Union of India has executive power only over the three entries in List II over which the government of NCTD does not have legislative competence.”

The judgment further said: “A democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.”

However, the current attempt of the centre to bring in the Authority goes beyond the power of the Union government as specified in law. The Union government is trying to micromanage all administrative officers, which goes against the spirit of democracy and the long-established practice in Delhi.

Abhishek Manu Singhvi while opposing the centre’s ordinance reportedly said: “When you lose the match, you change the rules.” The Delhi government has decided to approach the Supreme Court challenging the special law passed by the centre, while centre is seeking a review of the Constitution bench judgment.

This certainly is not the first time the centre has used an ordinance to circumvent judicial orders. The Tribunal Reforms Bill introduced in the Lok Sabha on February 13, 2021, is a case in point. Even when this Bill was pending, an ordinance with similar provisions was promulgated in April 2021, seeking to dissolve a certain appellate tribunal and inculcating their powers in existing bodies. In 2021, the apex court with a 2:1 majority struck down the provision of the ordinance relating to the minimum age requirement of 50 years for appointment of chairperson or members of Tribunals and the four-year tenures, prescribing a minimum tenure of five years. A month later, the centre passed the Tribunal Reforms Act, 2021. The Madras Bar Association challenged the provisions of the 2021 Act, which is pending before the apex court.

Similarly, in March 2018 in Kashinath Mahajan vs State of Maharashtra, it was directed that no arrests under the SC-ST Act could be made without prior permission of the appointing authority in the case of public servants, and the Senior Superintendent of Police for others. It further stated said that a preliminary inquiry be conducted before registration of an FIR. The centre in August 2018 amended the SC/ST Act, inserting Section 18A, allowing automatic arrest in atrocities against SCs and STs. In 2020, a bench of Justices Arun Mishra, Vineet Saran and Ravindra Bhat upheld the validity of the 2018 amendment in Prithvi Raj Chauhan vs Union of India. The Court proclaimed the validity of 18A of the Act and overruled the judgment in Kashinath Mahajan vs State of Maharashtra.

Thus, the tussle between the centre and various states will continue, thereby eroding federalism and the spirit of democracy.

—By Ritika Gaur and India Legal Bureau

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