 Hello and welcome to NewsClick. It's very clear even after a five-judge Supreme Court constitutional bench has unanimously ruled in dispute between the central government and the government of Delhi, that the fractious relationship between the centre and the Delhi government has not been resolved. Today we have as a specialist PDT Achary, former Secretary General of the 14th and 15th Lok Sabha and a noted expert on the working of the constitution. He's going to try to explain the important aspects of what has happened so far and what to expect next in this dispute. Mr Achary, thank you very much for joining NewsClick. We are hoping to be able to explain to our viewers why this ruling of the Supreme Court followed by the ordinance passed by the central government, why they matter. Now, when we were speaking earlier you said that Section 3A of this ordinance cleared by the centre basically does not undo the basis of the Supreme Court order. It is only nullifying it. Can you tell me why this distinction matters, what it means? In this particular case, the Supreme Court has said that the state government of Delhi has exclusive power to deal with the offices because that power was taken away by the central government through a notification earlier in 2015 and that was the case actually. The services means the posting and transfers of offices and employees, all these come under services. We are dealing with list number 2, that is the list which contains items on which only the state legislature can make law. That means parliament cannot make a law on a subject matter which is in the state list. That is what the legislative list means. Now, here the contentious issue was the services which come under the state list which is included in the item or entry 41 of list 2, that is the state list. So, basically services belong to the state that only the state has control over the services. That means the offices, employees and all that. The reason is that unless the government has control over its own offices, government cannot function. It is a very simple thing. But in the case of Delhi, this power was taken away by the central through a notification in 2015 that was challenged because now the position was the Delhi chief minister or the ministries did not have any kind of administrative or disciplinary control over the offices who are serving the Delhi government. So, they were directly under the left turn of governor who is the representative of the central. Therefore, the case was whether the services should come to the state or they should remain with the central. Supreme court has said no, the services should come under the state because otherwise the states cannot function. If the offices are not under the control of the state government, then the state government cannot function. On that basis, the Supreme court has given this judgment and said that the services should go to the state government. So that was the decision of the Supreme court. But Supreme court based its decision on article 239 AA3 which says that the state government of Delhi, I mean the legislature has all the powers which are given to the states. That means all the matches which are there in the state list except police, public order and land except these three items on all other items, the government has power to the legislature has power to make laws and the government has executive power. That is the crux of the Supreme court judgment. Now comes an ordinance. The central government was not satisfied with, obviously, was not satisfied with the Supreme court judgment. And therefore, they thought of bringing an amendment or bringing an ordinance containing an amendment of the GNC TD Act. That is the law which has been made by parliament to which deals with the governance of the state of Delhi. Okay. Now the crux of the ordinance is that the legislature of Delhi, that is the Delhi assembly lost this power of making laws about the offices, the services. That means services have been taken away from the Delhi government through this ordinance which goes contrary to the judgment of the Supreme court. Now the question is whether parliament can make a law, ordinance is a law, ordinance is a law which is made by the president. President means the government of India. The question is whether parliament can make a law to nullify the Supreme court judgment. Supreme court has said in many cases that parliament cannot do that because Supreme court has given its judgment in exercise of its judicial power and parliament does not have the judicial power. Therefore, it cannot neutralize or negate the Supreme court judgment. Parliament cannot say, for example, notwithstanding any court decree or order or judgment, this power is not with the state government. They cannot straight away say that. And actually section 3A to which I made a reference says only that or precisely that parliament cannot make a law to nullify or nullifying the judgment of Supreme court. But then parliament can make a law by giving another basis for that law. Another basis here would be the amendment or maybe nullifying the GNTCD Act, the Government of National Capital Territory Act. Is that what it can do or would it require a constitutional amendment? Yeah, because this decision of the Supreme court in giving the services to the state government is based on that particular provision in the constitution 239AA3 which specifically says that the assembly will have the power to register it on all matches in the state list except those three exempted items. So that means all matches including services. That is very clear and that has been made clear by the Supreme court. So its decision is based on that. So that basis has to change. That means unless you amend the constitution and take away or make a specific mention in that, that services will not be there with the state government. Only then the parliament's law will be valid. Otherwise it is not valid. That is it. You cannot just say what the Supreme court has said should not be accepted by anybody or not be standing in a thing. It means only that. That means whatever the Supreme court has said. Mr. Chari, if this law is not valid, even if parliament tries to pass a law of the kind that the ordinance imagines, if it is not valid, then does it not come into action? Will it be later struck down? What are the legal possibilities here? At the moment that law has come into force. The moment an ordinance is promulgated, it comes into effect. That is it. Now after the parliament meets now, whenever it meets, till then it continues. And it continues for another six weeks after the parliament session has begun. And within those six weeks the government can bring a regular bill before the house and pass it, get it passed by both the houses. Then it becomes a law. But this ordinance is valid now and also it will be valid till six weeks from the assembly of parliament, from the meeting of parliament. That is the position. Which six weeks is basically the time given to parliament to turn an ordinance. From the meeting. That means today the parliament meets in the next session. From that day onwards for six weeks, this ordinance will be in force. And during these six weeks, if bill is not passed, then the ordinance lapses. If it does not lapse and it becomes a law, that would be a perfectly valid law. No, that will be challenged. No, in fact in this ordinance can also be challenged. On many occasions in the past ordinance was challenged, ordinances were challenged. And in the meantime the ordinances were replaced by law, regular law. And then the challenge will be of that law. That's how it is. So the basic idea behind the subject matter of this ordinance will be under challenge. Absolutely. Now that I think the court is in recess, so when the court reassembles, then perhaps they will challenge you. Yes, the government of Delhi has said that they plan to challenge it. Suppose parliament passes a law that says that apart from the three exceptions, they are adding services as another exception, passing that as a law. Would that be valid in the eyes of the law and the constitution? What is the basis on which they say that? What is the basis? Just look at that. That is the basic issue. What is the basis on which the parliament says that services will be with the state government, will be with the center government? When the article in the constitution makes it very clear that all subjects which are dealt with by the states in list two will be available to the state government of Delhi except those three things. That means the services are also included in that. When the constitution says so, then how can you pass a law against that? You can't do that unless you amend the constitution. Is there a precedent for analyzing what a government does in this manner? Are you aware of any cases which have come up to your attention where there will be a committee or a person in charge of seeing whether the government is following the rules? Does this happen? That provision is there in the ordinance but that is something very strange kind of provision in the ordinance. Where the decisions taken by the council of ministries will be checked, scrutinized by an officer and then he will make a recommendation to the government who will take the final decision. That means you are actually defeating the very purpose of this constitutional provision. Those council of ministries take a decision on matters on which they can take decisions. It is matters which are within their jurisdiction and if the government takes a decision, somebody can challenge it in the court. But who is the secretary to say whether a decision taken by the council of ministries is against the constitutional rule? Because after all, a secretary is not a constitutional expert and he has no authority to decide on these matters or recommend on these matters. If a decision taken by the council of ministries is wrong in law or is against the constitution, then it can be challenged in a court of law. But the point is that the council of ministries have absolute powers in dealing with the matters which are within their jurisdiction. And you cannot have a secretary sitting over the council of ministries to scrutinize it and see whether this is in conformity with constitutional provisions and so on. That is absolutely, I think it is something very strange that this kind of a provision doesn't exist anywhere. Yes, even I mean I tried to look for previous such instances and I could not come up with any. You know, what happens next if a Supreme Court ruling by a five judge bench is not able to settle a very fractious debate since 2015, which has led to multiple hearings, multiple court cases going from the high court to the Supreme Court, various benches. So what does it mean about the state of federalism in India, especially with reference to the unique situation or the unique position of Delhi? So this is a very strange kind of situation where the Supreme Court's decision has not been accepted by the government. And within days the government has moved in with an ordinance to nullify these Supreme Court decisions. I think this has not happened for a very long time. And perhaps in the 60s and 70s, we have seen the laws made by parliament spec down by the court and then the parliament making a law to deal with that situation and so on, bank and nationalization and things like that, but that was a different kind of situation. But here it is not so. Here it is not so. Here a constitutional bench of the Supreme Court has said, and then it is dealing with a small thing. The services should remain with the state or the central. And it's a matter of common sense that services should remain with the states because state government must have control over the offices, otherwise the government cannot function. That is the thing. And if it is not allowed, then it is as good as saying that you have no power and you get out and you are not allowing the state government to function. It is like that. Therefore, if the constitution allows a government to function, then it should be allowed to function. And particularly when the Supreme Court has given a constitutional bench of the Supreme Court has analyzed and defined and explained the constitutional provision with regard to the position of the state government and these powers, then certainly I think every government, every authority should accept that. It is not an immediately you should rush in with an ordinance to neutralize that judgment. You can do that, but then on a different basis, on a different basis, you can challenge this or you can make a law with a different basis. That you are free to do. Parliament is free to do that. So what is the way out? This would keep happening, not just in Delhi, but there are many other pending disputes of this nature. New ones keep coming up. Distribution of funds is one issue. Water sharing is another issue. All these issues, would they just continue? Would we continue to fight it out in courts? Well, see you have certain constitutional mechanisms to deal with interstate water disputes and things like that. And there are many mechanisms created by the constitution which deal with such issues. And then Supreme Court is the court which deals with interstate disputes or the disputes between the states and the central and so on. That mechanism and I mean, that is there. So if there is a dispute, then either the mechanism created by the constitution will take care of it or the court will take care of it. That's how it is. Is it not something which places the ball now actually in the political court because when we are talking about a constitutional amendment, then you have to get the agreement of a large number of state governments to agree to it? Well, the constitution amendment which deals with certain aspects relating to the state, to the state's power, authority, for example, the change in the legislative list. Such matters will have to be ratified. If there is a constitutional amendment which deals with any of such matters will have to be ratified by half the number of the states. But then what is mentioned in the constitution is the state. The question is whether Delhi is considered to be a state or not. Delhi is not a state. It is a union territory. So whether this provision applies to the union territory or not, that is also to be decided by the court. Of course states, when the term state is defined, somewhere it is said it includes the union territories and somewhere it says that it doesn't include union territories. On this matter, where the bill seeks to change the powers of the state, so whether it is actually necessary to be ratified by half the number of the states. That itself is the question which comes before you. Yeah, that is the question which needs to be clarified by the court. So finally, before we end, do you think that whatever the center has done, we don't know what was their thinking, what was on their mind, but the action of bringing in an ordinance so soon after the Supreme Court ruling, is it as the Delhi government has been saying anti people, anti the court even, sort of, you know, violation of an order, are all these very strong statements, do they ring true to you right now? No, I can only say that it looks very strange that the government comes immediately with an ordinance to neutralize the law and utilize the decision of the Supreme Court. After all, it's a question of just services, posting and transfer of offices, which is not such a very big issue, for which the government should ration with an ordinance immediately. That was perhaps not necessary, but then it is the wisdom of the government, we can't say anything. It is only my personal opinion, but the government thinks otherwise and they have brought this ordinance. But you do think it stands on very thin legal ground, very thin constitutional ground. Legally, yes, I'm sure that legally, it is on a very, very sticky wicket or weak wicket. Right, sir. And thank you very much for joining us and thanks for explaining to our viewers exactly what is at stake over here. Thanks very much again. And thank you very much for watching this interview. You can find more stories and interview on issues that matter to us all on NewsClick's YouTube channel and on our website. Thank you again.