The Ordinance promulgated by the President on May 19, 2023 amending the Government of National Capital Territory of Delhi Act 1991(GNCTD Act) took away the services from the jurisdiction of the Delhi government. The services had been earlier restored to the Delhi government by the Supreme Court in a landmark judgment delivered on May 11, 2023. The Ordinance nullifies that judgment of the Supreme Court. The Court had found that if a government does not have control over its officers it would paralyse governance which cannot be the intention of the Constitution makers while incorporating Article 239AA, which gives a special constitutional status to Delhi. So the Court held that “legislative and executive power over services such as the Indian Administrative Services or Joint Cadre Services which are relevant for the implementation of policies and vision of NCTD [National Capital Territory of Delhi] in terms of day-to-day administration of the region shall lie with the NCTD.”
The validity of the Ordinance
The Ordinance which has nullified the court’s decision raises serious legal and constitutional questions. The first question which arises is whether an Ordinance promulgated by the President or a Bill passed by Parliament can nullify the Court’s decision. The Supreme Court has held in a large number of cases that since Parliament does not possess judicial powers, it cannot negate the decision of the Court without changing the basis of that decision. The Ordinance does not furnish any ground for nullifying the Court’s decision.
