Opinion Centre’s Delhi Ordinance disregards constitutional morality. Ambedkar and SC concur

Earlier, in a dispute between the two governments, the Supreme Court (2018) referred to constitutional morality in these words: “Constitutional morality is that fulcrum which acts as an essential check upon the high functionaries and citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the very idea of democracy.” The effect of the Ordinance is that the decision-making power has been taken away from the government of Delhi in respect of “services” for no apparent reason. It has, instead, given the government of India unbridled power and reduced the chief minister and council of ministers of Delhi to something less than a rubber stamp.

If the views of Ambedkar and the Supreme Court are read and appreciated in conjunction, it will be clear that the Ordinance unfortunately disregards constitutional morality.

Among other provisions, the Ordinance establishes an authority chaired by the chief minister of Delhi and called the National Capital Civil Service Authority. This authority only has farcical recommendatory powers with regard to Group A officers serving in the affairs of the government of Delhi other than those connected with public order, police and land, that is, entries falling within List II of the Seventh Schedule of the Constitution of India. Even though the authority is chaired by the chief minister, the other two members of the authority, who are senior bureaucrats, can overrule the chief minister.

Effectively, therefore, the chief minister is the titular head of the authority and despite being the elected representative of the people of Delhi, he is reduced to a cipher. That apart, the lieutenant governor of Delhi is not obliged to accept the recommendation of the authority.

Another unkind cut is a check on the council of ministers by its secretary who has been empowered to form an opinion whether a decision of the council of ministers is not in accordance with the provisions of law for the time being in force. In the event, the secretary forms such an opinion, he is obliged to bring the decision to the notice of the lieutenant governor for taking a decision thereon. In other words, the secretary assumes the role of an invigilator or an examiner testing the legality of decisions taken by the council of ministers. So not only is the chief minister reduced to a cipher but even the council of ministers is reduced to a cipher. It is a wonder how Delhi will be governed under these circumstances.

Will justice be impacted through the Ordinance? Yes, section 45D of the Ordinance states that the power to appoint any chairperson, member or office-bearer in any commission, statutory authority, board, corporation lies with the president, meaning thereby the government of India. The consequence is that the appointment to statutory bodies exercising quasi-judicial power, including Child Welfare Committees, Delhi Commission for Women, Delhi Commission for Protection of Child Rights, Delhi Electricity Regulatory Commission and so on shall be made by the government of India. This extends to sectors like child rights, women’s rights, transport, water, electricity etc. Effectively, Delhi’s elected government is left rudderless and the will of the people is rendered inconsequential.

Given the sweep of the Ordinance, it is quite clear that the intent and purpose of the Ordinance is to overturn the unanimous judgment of the Constitution Bench of the Supreme Court. The Ordinance comes out as a constitutional fraud on the people of Delhi, its elected representatives and the Constitution.

The entire exercise leads one to wonder whether Babasaheb Ambedkar was wrong in invoking the spirit of the Constitution and accepting “the necessity of the diffusion of constitutional morality for the peaceful working of a democratic Constitution…”.

The writer is a retired justice of the Supreme Court of India