The Centre’s ordinance, promulgated on Friday, unwisely and unabashedly undoes the judicial and judicious settlement of a long battle that gave primacy to representative government in Delhi. On May 11, a five-judge Constitution Bench of the Supreme Court led by Chief Justice of India D Y Chandrachud unanimously ruled that the elected government of Delhi, which is a Union Territory with a legislative assembly, has control over “services”. Now the Centre has, in effect, defied the apex court’s order by creating, through the ordinance, a National Capital Civil Service Authority headed by the chief minister, with the chief secretary and principal secretary, home, as members — “all matters required to be decided by the authority shall be decided by majority of votes of the members present and voting”, it says.
Since the SC order, the Aam Aadmi Party government has been in an unseemly hurry to take to task officers it perceives as doing the Centre’s bidding, but the ordinance upends democratic accountability. Two bureaucrats appointed by the Centre can now over-rule its elected chief minister. The ordinance restores, even expands, the Lieutenant-Governor’s control over Delhi’s governance. If in its May 11 ruling, the Court had struck a blow for “the basic structure of federalism”, this ordinance undermines constitutional federalism in both letter and spirit. In its bid to wrest control of a government led by another party, the Centre’s move smudges and blurs the line of accountability that runs between the people and their representatives in Delhi.
The question of the division of powers between the Centre’s appointee (the L-G) and the state government has been considered and scrutinised by the court since 2015, when the former brought “services” under the L-G. The Delhi High Court upheld the Centre’s decision, but in 2018, the SC ruled in favour of Delhi, demarcating the Union and Delhi governments’ spheres of control. In 2019, a two-judge bench was split on the issue of services. The tortuous process finally led to the emphatic May 11 verdict. The government may well defend the Government of National Capital Territory of Delhi (Amendment) Ordinance by citing parliamentary supremacy. The invocation of parliament’s prerogative, however, provides thin cover for an ordinance that the Executive has unilaterally pushed through, literally in the dark, and which hurts other foundational principles that are part of the basic structure of constitutional democracy.
Senior members of the ruling party and government often cite the people’s mandate to underline the legitimacy of their actions and policies. By the same token, the Delhi Assembly and government also represent the people’s will. Through this ordinance, the Centre seems to be sending the message that the only elections that matter are the ones the ruling party wins — and that the power conferred on it brooks no checks and balances. On Saturday, the Centre moved the SC, challenging its May 11 order. Coming a day after the ordinance, this betrays the Centre’s sense of purpose to shrink any elbow room the AAP government may have got because of the SC order. Of course, the case made in the review plea needs to be heard — and contested — but the SC must ensure that the eloquent and essential defence of democratic federalism by its Constitution bench is not hijacked. The Delhi case is a talismanic test of checks and balances in the face of an overweening Centre, Executive and Legislature.
