Against the background of this categorical statement, it is clear the central ordinance has been promulgated to nullify the judgment. The new section 3(A) begins with a non-obstante clause “notwithstanding anything contained in any judgement order or decree of any court “.

The reference is obvious. The SC held that the legislative assembly has the power to legislate on services and the NCTD government has executive power thereon. In contrast, the ordinance says the legislative assembly has no power to make any laws on services, notwithstanding any decision of any court.

This raises an important constitutional question: Can Parliament make any law nullifying the SC’s judgment and its direction? In People’s Union of Civil Liberties and another vs Union of India (AIR 2003 SC 2363), the SC held that the legislature has no power to declare that the decision given by the court is not binding or is of no effect. It can change the basis on which a decision is given by the SC, but it cannot review and disregard such a decision. In fact, this has been the SC’s consistent view. So, the new section 3A of this ordinance, which seeks to nullify and set at naught the SC’s decision, does not appear to be valid.

There is a second interesting aspect to this ordinance. It seeks to establish an authority — National Capital Civil Service Authority — under part 4A for “provisions relating to the maintenance of the democratic and administrative balance in the Governments of the national capital territory of Delhi’’. It comprises the chief minister (CM) who will chair the panel, and the chief secretary (CS) and the principal home secretary (PHS) as members. Two members will constitute the quorum and all decisions will be taken by majority. This authority’s only responsibility is to recommend transfers and postings, and make recommendations for disciplinary matters. This authority may even meet with only the CS and the PHS present. Even when the CM presides, if the two senior bureaucrats join hands, the CM will be out-voted. It does not need any research to conclude that the CS and the HS may invariably be on one side, and the CM’s opinion is likely to not count at all.

So, all matters relating to transfers and postings and disciplinary issues are likely to be recommended by the two senior bureaucrats, and ultimately decided by the LG. The CM or his ministers may end up having no say in these basic administrative functions. The SC had said that bureaucrats are an essential link in the chain of accountability, and therefore, the system requires them to be accountable to the council of ministers and the legislature. This ordinance negates that fundamental principle of accountability. The SC had said that for any government to function, it must have control over the bureaucracy. But by creating this panel, section 45(E) contained in the ordinance appears to run contrary to the SC verdict, and also violates Article 239AA (6) of the Constitution.

A third controversial provision is contained in section 45J (4) of the new part 4A, which says the CS will submit the proposal to the LG and the CM for their opinion for the convening, prorogation and dissolution of the assembly. According to this provision, the summons to the members of the assembly may have to be issued by the CS. As per the Constitution, the decision to summon the House is taken by the cabinet, headed by the PM or the CM. The decision of the cabinet to summon or prorogue the House is conveyed to the speaker, and the secretary general informs the president of the cabinet decision. Thereafter, the President issues summons. States follow the same practice, with the governor in place of the President.

But under the new procedure, the CM and the LG are merely informed of their opinion. The ordinance does not say who moots the proposal to convene the assembly and who takes the decision in this matter. In the absence of clarification, it should be presumed that the CS will decide to convene, prorogue and dissolve the assembly. No further comment is needed to explain the wisdom behind this provision.

Article 239AA (7) empowers Parliament to make a law to supplement the provisions contained in that article. But Parliament cannot make a law that goes contrary to Article 239AA. The present ordinance appears to be violative of that article. The long preamble to the ordinance with far too many “whereas” has created an impression that if the Delhi CM transfers even a deputy secretary, it will have both national and international repercussions, but if the LG does so, there won’t be any problem. This is a total absence of logic. This ordinance is legally unsound and politically unwise.

PDT Achary is former secretary-general, Lok Sabha The views expressed are personal