The Centre Friday promulgated an ordinance, The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, to create a National Capital Civil Service Authority that will have the power to recommend the transfer and posting of all Group A officers and officers of DANICS serving in Delhi.

Last week’s Constitution bench of the Supreme Court handed over the reins of “services” to the Delhi Government. The court had then underlined the importance of the people’s mandate in a democracy expressed through an elected government.

The authority will be chaired by the Delhi Chief Minister and will include the Chief Secretary and the Principal Secretary, Home, and “all matters required to be decided by the authority shall be decided by majority of votes of the members present and voting.

In case the LG differed with the recommendation made, the ordinance said, they were empowered to “return the recommendation to the Authority for reconsideration” and, in case of difference of opinion, “the decision of the Lieutenant Governor shall be final.”

LEARNING WITH TIMES

Article 123 of the Constitution of India grants the President certain law-making powers to promulgate ordinances when either of the two Houses of Parliament is not in session. The fundamental reason for bestowing the executive with the power to issue ordinance “to deal with situations where an emergency in the country necessitated urgent action.”

An ordinance may be concerned with any subject that the Parliament has the power to legislate on and also has the same limitations as the Parliament to legislate according to the distribution of powers between the Union, State and Concurrent Lists. There are three limitations with regard to the ordinance making power of the executive. They are:

The President can only promulgate an ordinance when either of the two Houses of Parliament  is not in session

The President cannot promulgate an ordinance unless he is satisfied that there are circumstances that require taking immediate actionOrdinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the ordinance are passed by both the Houses.

The following limitations exist with regard to the Ordinance making power of the executive:

i. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
ii. Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action.
iii. Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature.

The Supreme Court made it clear that re-promulgation of an ordinance was like a fraud on the Constitution and the satisfaction of the President or the Governor to promulgate an ordinance was not immune from judicial review. The court also held that the satisfaction of the President under Article 123 and of the Governor under Article 213 while issuing ordinances is not immune from judicial review.

                                            JUDICIAL REVIEW

The Constitution of India is the supreme law of the land. The Supreme Court of India has the supreme responsibility of interpreting and protecting it. It also acts as the guardian-protector of the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of determining the constitutional validity of all laws.
It has the power to reject any law or any of its part which is found to be un-constitutional. This power of the Supreme Court is called the Judicial Review power.