The Government of Delhi (Amendment) Ordinance, 2023 was notified late night on 19th May 2023 by the BJP ruled central government. The ordinance removes control over its officials from the elected AAP government in Delhi. On behalf of the Central Government, this ordinance has been brought to overturn the historic decision of the Constitution Bench of the Supreme Court, which was unanimously decided on 11 May 2023 by the Constitution Bench of five judges of the Supreme Court in favor of the Kejriwal government of Delhi and the BJP. was pronounced against the ruling central government.
The ordinance is widely being viewed by legal experts as unconstitutional and a direct attack on the authority of the Supreme Court. Here are five reasons why this is so:
- Violation of the principles of federalism:
The Supreme Court in its judgment of May 11 said that federalism in a country like India ensures representation of diverse interests. It is also a part of the basic structure of the constitution which cannot be amended by the Parliament. However, the new ordinance substantially limits the powers of the NCT government, which are guaranteed under the Constitution. According to legal experts, under Article 239AA of the Constitution, the NCT of Delhi has legislative and executive powers over the services, which are given in Entry 41 of the State List.
The Ordinance takes away the power of the Legislative Assembly of Delhi to legislate on the matter of services and removes the executive control of the Delhi government. Legal experts agree that the Ordinance is contrary to clause (3)(A) of Article 239AA. The Central Government cannot take away the power of the Delhi Assembly to make laws on services, which is guaranteed by the Constitution.
- Against the decision of the Supreme Court:
According to legal experts, the ordinance seeks to nullify the unanimous judgment of the Supreme Court by a five-judge constitution bench on May 11, 2023. This Ordinance should address the underlying logic of the Court by removing the basis of the Supreme Court’s decision.
Significantly, the basis of the Supreme Court’s decision is Article 239AA, which is the principle of representative democracy, federalism and accountability. According to legal experts, by issuing an ordinance that violates Article 239AA, the central government has also violated the Supreme Court’s judgment in Madras Bar Association v. Union of India, dated July 14, 2021
- Suppresses accountability and responsibility of bureaucracy:
Taking a pragmatic approach, the Supreme Court in its judgment dated 11 May 2023 highlighted the triple chain of accountability: the people hold the legislature accountable through periodic elections; The government functions as long as it has the support of the legislature; And the bureaucracy has to be held accountable for their actions by the Delhi government.
The court said that if officers stop reporting to ministers or do not follow their instructions, the principle of collective responsibility of ministers will be affected. But the ordinance practically bars the Delhi government from exercising any control over the officers. Legal experts say this is a huge and illegal roadblock imposed by the Center to hamper the functioning of the AAP-ruled Delhi government.
- Against the people and democracy of Delhi:
The Kejriwal government of Delhi is seeing this ordinance as an insult to the democratic will of the people of Delhi. The Aam Aadmi Party says that through popular elections, the people of Delhi have placed faith in the NCT government, ruled by Chief Minister Arvind Kejriwal, and the government has a duty to fulfill its responsibilities towards them.
The ordinance prevents the democratically elected government from carrying out its development and welfare agenda. If the administrative services are taken out of the purview of the Delhi government, then the ministers will be prevented from controlling the civil servants who have to implement the decisions of the government. Thus, the ordinance is antithetical to democracy itself. Legal experts also agree that this is a virtual takeover of Delhi’s elected government by the Centre. It completely nullifies the mandate given by the people of Delhi to the Government of NCT.
- ‘Political move to suppress the opposition:’
Some political experts are also seeing the ordinance as the BJP’s response to the ground lost in crucial state elections and judicial battles for the AAP government in Delhi. By bringing the ordinance, the Center wants to ensure that it has control over all projects being implemented by the elected Delhi government and can effectively stop them if needed.
The Aam Aadmi Party is terming this ordinance as a strategy of the BJP to stop the opposition’s growing moves for the 2024 general elections. There are allegations that in the coming year, it also has the potential to influence free and fair elections, another element of the basic structure of the Constitution.
(Note: This article is based on conversations with legal experts)