6 min readJul 9, 2023 04:19 PM IST
First published on: Jul 9, 2023 at 04:19 PM IST
The Constitution bench of the Supreme Court unanimously recognised the constitutional authority of the elected Government of Delhi over services. This should have ended the long case of bureaucrat’s accountability in Delhi, but the Centre had other plans, as it overturned the judgment by introducing an ordinance to retain the Union’s control over services. I was confounded by this move since BJP has had a long history of demanding full statehood for Delhi. Even after Delhi was granted special status in 1991, erstwhile Chief Ministers Madan Lal Khurana and Sahib Singh Verma expressed the need for full statehood. Also, I was part of the NDA-I government that had introduced the State of Delhi Bill in August 2003, proposing full statehood for Delhi.
The nation’s first response to the Centre’s Services Ordinance was that it overturned the Supreme Court verdict. However, its fine print reveals a more intricate design of the Centre – going beyond services — to grab control of the day-to-day administration of Delhi through the backdoor. It will render the elected Government of Delhi powerless, and flagrantly stall its efforts to realise its development agenda.
Like other states, Delhi is run by several commissions, corporations and statutory authorities – more than 50 in number – which manage specific domains of governance such as industry, tourism, electricity, transport, water supply and sewerage, women and child rights and so on. The chairpersons and members of these bodies were appointed by the LG with the aid and advice of Delhi’s Council of Ministers. But after the Ordinance, these appointments are to be made by the Central Government.
When the Delhi Government made these appointments, there was streamlining of objectives, strategies and implementation which is the hallmark of a stable and effective government. But now, the Centre has practically overtaken the entire governance of Delhi and is appointing its own persons to all these bodies. This destroys the power-sharing arrangement under the Constitution because there is effectively nothing left for the elected Government of Delhi to govern.
Further, the Ordinance hands over the governance of Delhi to its bureaucrats, to the exclusion of Ministers. Now, the secretaries are to decide the legality of any directions issued by a Minister. Thus, under the guise of “illegality”, the secretary can refuse to implement any and every ministerial direction. He can completely disregard the development agenda that people voted for. The Minister’s directions are no longer binding on the officers, which will lead to widespread defiance and insubordination by the bureaucrats. This also strikes at the very root of Indian civil services, which are embedded in discipline and integrity.
What is even more befuddling about the Ordinance is that the finalisation of cabinet notes, which was previously the responsibility of the Minister, has now been shifted to the Secretary. If the elected government wishes to bring any scheme or programme to the cabinet, it cannot do so if the Secretary refuses. With services and vigilance in Delhi being under the control of the Centre, there will be considerable influence of the Centre on the bureaucrats to not implement the elected government’s agenda. This primacy of unelected bureaucrats over elected ministers is so anomalous that no democracy or its people will ever accept it.
Thirdly, the Ordinance wrongfully grants powers to the Chief Secretary to sit in judgement over the Cabinet’s decisions. Now the Chief Secretary has overriding powers to decide whether a Cabinet decision is legal or not. These Cabinet Notes are already vetted by the Law Department before they are tabled before the Cabinet, so one can only wonder what the Chief Secretary will decide on.
The ulterior motive behind this is simply for the Central Government to control decision-making in areas that are constitutionally designated to the Delhi Government. The more egregious aspect is that the Chief Secretary, if he considers a cabinet decision to be illegal, will refer the same to the LG for decision. Till now, the LG did not have any independent decision-making power, and if he differed from any decision of the Council of Ministers, he could only refer the matter to the President. However, through this ordinance, the LG can alter or reject any decision of the cabinet.
The manner in which the Centre has addressed the “Delhi question” is of grave concern. The Constitution provides a federal structure so that regional aspirations can be represented and realised by state governments, which cannot be possible for a centralised union government. It ensures a mechanism where the people hold their legislators accountable, the legislature holds the government accountable, and the government holds the bureaucrats accountable. The Ordinance fails on both counts – it takes away the autonomy of the Delhi government in whatever limited domain granted by the Constitution and also prevents it from exercising any control over the officials. In either case, it is the people of Delhi who will lose the most.
That the Services Ordinance is constitutionally invalid is a forgone conclusion. But it has also breached the lines of administrative pragmatism, popular legitimacy and political propriety. While the Supreme Court will eventually strike it down, in the meantime, it will only brew administrative chaos and sound a death knell for democracy and federalism.
The writer is a former Union external affairs and finance minister
Delhi CM Arvind Kejriwal and Delhi LG Vinai Kumar Saxena. (File) 
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