He Downtown ordinance, enacted Fridayhe recklessly and brazenly undoes the judicial and judicious settlement of a long battle that gave primacy to representative government in Delhi. On May 11, a Constitution Chamber of five Supreme Court judges led by the Chief Justice of India, DY Chandrachud, ruled unanimously that the elected government of Delhi, which is a Union Territory with a legislature, has control over the “services”. Now the Center has, in effect, defied the high court order by creating, through the ordinance, a National Capital Civil Service Authority headed by the Prime Ministerwith the principal secretary and the principal secretary, home, as members — “all matters that require decision by authority shall be decided by a majority vote of the members present and voting,” it says.
Since the SC order, the Aam Aadmi Party government has been in an unseemly rush to hold accountable officials it perceives to be doing the Center’s bidding, but the ordinance nullifies democratic accountability. Two Center-appointed bureaucrats can now overrule their elected prime minister. The ordinance restores, even extends, the lieutenant governor’s control over the Delhi government. If in its ruling of May 11, the Court had dealt a blow to “the basic structure of federalism”, this ordinance undermines constitutional federalism both in letter and in spirit. In its bid to wrest control from a government run by another party, the Center’s move stains and blurs the line of responsibility that stretches between the people and their representatives in Delhi.
The issue of the division of powers between the Center appointee (LG) and the state government has been considered and analyzed by the court since 2015, when the former filed “services” under the LG. The Delhi High Court upheld the Center’s decision, but in 2018, the SC ruled in favor of Delhi, demarcating the spheres of control of the Union and the Delhi governments. In 2019, a two-judge court split on the issue of services. The tortuous process ultimately led to the emphatic verdict on May 11. The government may well uphold the Delhi National Capital Territory Government Ordinance (Amendment) by citing parliamentary supremacy. The invocation of parliamentary prerogative, however, covers up an ordinance that the Executive has promoted unilaterally, literally in the dark, and that damages other founding principles that are part of the basic structure of constitutional democracy.
Senior officials in the ruling party and government often cite the people’s mandate to underscore the legitimacy of their actions and policies. Similarly, the Delhi Assembly and government also represent the will of the people. Through this ordinance, the Center appears to be sending the message that the only elections that matter are the ones the ruling party wins, and that the power vested in it admits of no checks and balances. On Saturday, the Center moved the SC, defying its May 11 order. Coming a day after the ordinance, this betrays the Center’s intent to reduce any leeway the AAP government may have because of the SC order. Of course, the case made in the petition for review must be heard—and challenged—but the SC must ensure that its constitutional court’s eloquent and essential defense of democratic federalism is not hijacked. The Delhi case is a talismanic test of checks and balances in the face of an arrogant Centre, Executive and Legislature.
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