Opinion AAP’s Atishi writes: The Centre’s Delhi Ordinance and echoes of Ambedkar’s warning

It took the central government eight days to make a brazen attempt to overturn this order. Knowing that the SC gave a strong, clear and unanimous verdict, they waited for the court vacation to start, and then within hours promulgated an unconstitutional ordinance. The Centre does have powers to pass an ordinance or even legislate under Article 239AA(3)(b). However, the power to legislate in order to implement Article 239AA cannot be used to make laws in contravention of Article 239AA, or laws which turn Article 239AA on its head. As the ordinance expressly restricts the powers of Delhi’s Vidhan Sabha, and removes any effective control of the elected government of Delhi over “services”, it is a clear violation of Article 239AA itself.

When a Union law attempts to undo the judgment of the Court by an ordinance or even legislation, it must remove the foundation of the judgment. It is clear from the judgment of the Constitution Bench that the Delhi government’s power to control services is derived from the Constitution and its Basic Structure. Chief Justice D Y Chandrachud observed that the will of the people cannot be implemented if the bureaucracy is not accountable to the elected government. While trying to nullify the SC decision, the Services Ordinance does not — and indeed, could not — have amended or removed the foundation of the Court’s decision, that is Article 239AA and the principles of federalism, representative democracy, collective responsibility and accountability as enshrined in the constitutional provisions. Despite these limitations, the Centre promulgated the ordinance. While the founding fathers and mothers of the Indian republic strived to ensure “rule of law”, the BJP-led dispensation seems to think that it is a law unto itself, and above the Constitution.

The Services Ordinance is not just about Delhi, Arvind Kejriwal or the Aam Aadmi Party. It is an attack on democratic principles and institutions. The nine years of the Modi government have been infamous for the BJP usurping power in states where it loses elections. First, it runs Operation Lotus to poach MLAs using money and muscle power and forms its own illegitimate government. If that is not possible, it unleashes the CBI and ED on governments formed by other parties. And with those Opposition-run states that remain, it takes away the power from state governments through unconstitutional devices such as the GNCTD (Amendment) Act of 2021 or the GNCTD (Amendment) Ordinance of 2023. As of May 2023, the BJP’s influence in states has been reduced to just 43 per cent of India’s land area, and just 44 per cent of the population. It is now attempting to assault the federal structure of the country and concentrate power in the hands of the Union government.

Delhi has become the experimentation ground for the BJP to try tactics for constraining the powers of states. After the obstructionist agenda of the L-G in Delhi, the BJP government extended the practice to Puducherry. And now it regularly uses the apparatus of the governor/L-G to undermine democratically elected non-BJP governments. West Bengal, Punjab, Telangana, Tamil Nadu, Kerala, Maharashtra and other states have witnessed governors obstructing government proposals, unconscionably delaying assent to bills passed by state legislatures, and unduly interfering in the day-to-day administration of the state by acting beyond their powers. This unconstitutional ordinance, by reducing the powers of the Delhi government, should ring alarm bells for other non-BJP-ruled states too.

Perhaps the most audacious aspect of this episode is the very act of the central government promulgating an ordinance to overturn the unanimous verdict of a five-judge bench of the Supreme Court. The Services Ordinance is an unforgivable assault on the Supreme Court’s dignity. In our democratic set-up, powers are distributed between the legislature, the executive and the judiciary. Out of these, the judiciary is the most important pillar that upholds the Constitution, and this is why the Supreme Court is called the “custodian of the Constitution”. But the Services Ordinance is a brazen attempt to run roughshod over its authority and wisdom.

As the Centre keeps mounting attacks on federal governance and obliterates opposition-run state governments, the stakes have dramatically risen for the whole country. This time it is not just Delhi, but the whole of India that is looking towards the Supreme Court to uphold the Constitution and its values.

The writer is Minister of Education, Delhi and a senior leader of the Aam Aadmi Party