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Rijiju’s removal, ordinance intensify judiciary vs govt debate

NewsRijiju’s removal, ordinance intensify judiciary vs govt debate

Rijiju had always been openly critical of the collegium system for appointment of judges, terming it unconstitutional.

NEW DELHI: Once again, the dispute over rights, conflict and constitutional powers has heated up. Judiciary is becoming more active and giving new directions to governments. It’s not that this is India’s problem. In America, judges are appointed with the approval of the President and the Parliament. In Pakistan, the lower and higher court oscillates between the ruling leader and the leader of the Opposition and the army. One of the public classes in Israel is doing a big movement on the issue of judicial independence. But the situation in India is beyond all controversies. Despite ups and downs, it is in control. That’s why due to sudden removal of Union Law Minister Kiren Rijiju and transferring charge to Arjun Ram Meghwal, with huge administrative political experience, it seems that the confrontation between the government and the Supreme Court can be expected to stop. Apart from that, Rijiju and Meghwal should also understand the importance of larger role in the North East and Rajasthan for the Lok Sabha elections.
On one hand, Prime Minister Narendra Modi shifted Law Minister Rijiju, and on the other hand, continued to use the power of the constitutional executive by issuing an Ordinance to counter the Supreme Court’s recent judgement. A week after the Supreme Court ruled that the Delhi government has control over bureaucrats assigned to departments under its purview, the Union government on Friday evening issued an Ordinance restoring to itself the power over “services” by way of making a raft of major amendments in the Government of National Capital Territory of Delhi (GNCTD) Act, 1991.
The Ordinance also strengthened the position of the Lieutenant Governor (LG), making him the final authority who can act in his “sole discretion” in deciding the matters relating to the transfer and posting of bureaucrats. In a move perceived as nullifying the constitution bench judgment on 11 May, the Centre has introduced a whole new chapter in the GNCTD Act, Part IVA, to create a National Capital Civil Service Authority (NCCSA) and a public service commission for transfers and postings of the officers serving in the affairs of the Delhi government. Delhi, so far, did not have a service commission of its own. The Ordinance now envisages a separate cadre for Delhi, to be drawn from the Union Public Service Commission (UPSC) and the Delhi Subordinate Services Selection Board (DSSSB).
At the same time, the Ordinance centralises the powers regarding “services” with the LG, stating that the LG will take the final decisions regarding the recommendations made by NCCSA. This committee will decide by voting, and the LG, on receiving the recommendation, will have the discretion to send it back for reconsideration. In the event of any difference of opinion, the opinion of the LG will be final.
“This would statutorily balance the interest of the nation with the interest of Union Territory of Delhi in the administration of the capital by giving purposeful meaning to the manifestation of the democratic will of people reposed both in the Central Government as well as the GNCTD,” the Ordinance said while referring to the new body being created.
The AAP described the move as a “contempt of the Supreme Court”, while the Delhi BJP welcomed it. An Ordinance needs to be replaced by a law passed by Parliament within six months. To overcome the effect of the judgment, the Ordinance introduced Section 3A which states: “Notwithstanding anything contained in any judgement, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto.” Entry 41 of List II relates to state public services and state public service commission. By a 2015 notification, the Union government had laid down that the Delhi government will have no powers over services.
According to the stated objective of the ordinance, the Supreme Court was required to consider a reference concerning the subject of services in the NCTD since there was no parliamentary legislation dealing with the subject of ‘services’.
“In view of its special status as a national capital, a scheme of administration has to be formulated by Parliamentary law, to balance both local and national democratic interests which are at stake, which would reflect the aspirations of the people through joint and collective responsibility of both the Government of India and the Government of National Capital Territory of Delhi… any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum,” it added.
The ordinance that the government issued to overturn the Supreme Court verdict in which it lost power over the National Capital Territory to the Delhi government is an act of a “bad, poor and graceless loser”, advocate and Congress spokesperson Abhishek Manu Singhvi said. “Greater doubt whether Parliament as a whole will at all approve it,” Singhvi who represented the Delhi government in the years-long legal tussle said. How can the Constitution Bench of the Supreme Court be nullified by an Ordinance, Singhvi asked. “Basis of Constitution Bench was federalism; critical, unique, NCT status under 239AA not being a mere UT; autonomy of elected govt; CS to be accountable to elected govt…none can be changed by Ordinance,” the senior advocate said.
Rijiju has always been openly criticizing the collegium system for the appointment of judges. He also declared it unconstitutional. It was being said that the central government sought to play its role in the appointment of judges. The way Rijiju, a minister in the Modi government, has been commenting on the Supreme Court in recent months had probably made the government uncomfortable. The situation worsened to such an extent that the petition was filed and action was demanded in the Supreme Court on the remarks made by Union Law Minister against the collegium system. However, the Supreme Court dismissed the petition saying that he has a comprehensive approach to deal with it. Rijiju had said that the collegium system is not transparent about appointment of judges. When the matter of Judiciary vs Government arises in the media, Rijiju said that differences are inevitable in a democracy.
The writer is editorial director of ITV Network—India News and Dainik Aaj Samaj.

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