Author: Shaik Umarfarooq, Lovely professional university
To the Point
Around the middle of 2023, a major event unfolded in India’s political and constitutional landscape with the issuance of the Government of NCT of Delhi (Amendment) Ordinance, formally enacted by the President of India. This ordinance, introduced shortly after a landmark Supreme Court ruling, sparked national concern over the separation of powers, the role of the judiciary, and the limitations of executive authority. It reignited debates about how far the central government can go when it comes to controlling administrative matters in a region with a democratically elected legislature. The incident has called into question the permissible use of ordinance powers and the health of Indian federalism.
Use of Legal Jargon
This article engages with several key constitutional terms and doctrines, including Article 123 (ordinance powers), quasi-federalism, executive dominance, constitutional ethos, judicial review, and cooperative federalism. These concepts are explored through the lens of how ordinance-making has been used perhaps misused in a politically charged setting involving the Union and the Delhi government.
The Proof
On May 11, 2023, a five-judge bench of the Supreme Court ruled decisively that the elected government of Delhi would have legislative and administrative control over all services in the National Capital Territory, except those explicitly mentioned as Union subjects namely land, police, and public order. This decision reaffirmed the principle that elected bodies must be empowered to govern.
However, less than a week later, the Central Government introduced an ordinance that practically reversed the Court’s verdict. The ordinance created a new decision-making body, the National Capital Civil Services Authority (NCCSA), comprising the Chief Minister, Chief Secretary, and Principal Home Secretary of Delhi. This body was designed to oversee postings and transfers of bureaucrats, but with a caveat—the final word would rest with the Lieutenant Governor, who represents the Centre.
The move clearly reflected an effort by the Central Government to reassert its hold over Delhi’s administrative framework, effectively diminishing the authority of the elected government and bypassing the interpretation laid down by the judiciary. Such a move questioned whether ordinance powers are being deployed for urgency or for political manoeuvring.
Abstract
This article undertakes a constitutional and political analysis of the 2023 GNCTD (Amendment) Ordinance, evaluating its broader impact on governance and legal principles. It discusses the fine balance between executive necessity and judicial authority, especially in cases where the judiciary has just settled a contested issue. The ordinance raises serious concerns over the erosion of democratic values, the marginalization of elected institutions, and the overuse of temporary executive powers. Through constitutional provisions and case law, the article evaluates whether this move complies with the spirit of federalism or reflects a growing trend of executive excess in Indian governance.
Case Laws and Precedents
1. D.C. Wadhwa v. State of Bihar (1987)
The Court strongly condemned the practice of continuously reissuing ordinances without placing them before the legislature, calling it a fraud on the Constitution and an attack on democratic accountability.
2. A.K. Roy v. Union of India (1982)
In this case, the Supreme Court acknowledged that ordinances have the status of law but emphasized they cannot bypass essential constitutional checks and should be subject to judicial evaluation.
3. Krishna Kumar Singh v. State of Bihar (2017)
This case reiterated that ordinances must not be used as tools for repeated legislation and that prolonged reliance on them undermines legislative sovereignty and violates the Constitution.
4. Government of NCT of Delhi v. Union of India (2023)
A Constitution Bench ruled that the Delhi government has the right to govern administrative services within its domain. The ordinance, however, reversed this empowerment, creating tensions between the judiciary and the executive.
Conclusion
The 2023 ordinance concerning Delhi’s governance structure illustrates a pressing constitutional dilemma. Article 123 allows for ordinances to be issued during legislative recess, but that power must be wielded with responsibility, transparency, and restraint. When an ordinance essentially negates a Supreme Court decision and upsets the authority of an elected state government, it sets a dangerous precedent for democratic institutions.
Such actions threaten the foundation of federalism, weaken public trust in democratic mechanisms, and risk turning the exception of ordinance-making into a convenient political shortcut. If this continues unchecked, the role of the judiciary and state legislatures may be reduced to ceremonial rather than functional authorities.
The courts, legislature, and civil society must stay vigilant. India’s Constitution envisions a balance not dominance between different branches of government. That balance is at risk when laws are made through ordinances in politically motivated contexts without adequate legislative scrutiny.
FAQS
Q1. What exactly is an ordinance in Indian constitutional law?
An ordinance is a legal instrument that enables the President (or a Governor at the state level) to enact laws when the legislature is not in session. It is a temporary law that must be ratified by the Parliament within six weeks of reconvening.
Q2. Why is the GNCTD Ordinance seen as problematic?
The ordinance overturned a recent Supreme Court judgment favoring Delhi’s elected government. Critics argue that it undermines judicial authority and limits the autonomy of state governments.
Q3. Can the President refuse to issue an ordinance?
Technically, the President acts based on the advice of the Council of Ministers and cannot exercise independent discretion. However, constitutional conventions expect such powers to be used sparingly and only in genuine emergencies.
Q4. What happens if an ordinance is not passed by Parliament?
If Parliament fails to approve the ordinance within six weeks of reconvening, the ordinance ceases to be effective and lapses automatically.
Q5. Does this issue affect Indian states beyond Delhi?
Although the ordinance applies specifically to Delhi, the broader legal and democratic implications affect the entire nation. It sets a precedent that might inspire similar interventions in other states, especially where different political parties hold power at the Centre and state levels.
