The Supreme Court is set to hear the Delhi government’s petition on Monday (July 10), challenging the legality of the recent ordinance the Union government promulgated to wrest from the Aam Aadmi Party (AAP) government the power of transfers and postings of officers working in the Delhi administration.
That the issue of the separation of powers between the Union government and the Delhi government is still up for debate after eight years of litigation and two constitutional bench judgments speak as much to the top court’s deficient decisions as it does to the Centre’s anti-democratic functioning
The most significant defect of the two constitutional bench judgments thus far has been that they have not given adequate consideration to the rights of the citizens of Delhi, instead focusing too much on constitutional technicalities and niceties. The matter must be adjudicated from the perspective of Delhi’s residents.
Several legal experts – from former Supreme Court judge Justice Madan Lokur to former Secretary General of the Lok Sabha P.D.T. Achary – have weighed in on how the ordinance is illegal. The ordinance must be stayed and eventually struck down. But to conclusively shut the doors on any further unconstitutional incursions by the Centre into the elected Delhi government’s territory, the court would have to delve far deeper into the crevices of the Constitution than it has thus far.
Many constitutional considerations are at the heart of the issue:
- Basic structure doctrine,
- GNCTD-specific federalism principles, as opposed to state-specific federalism principles.
- GNCTD-specific principles of representative and parliamentary democracy.
- The right to equality under Article 14, and
- The right to life and liberty under Article 21.
The two constitutional bench decisions have failed to address the above points adequately.
The court rulings have recognised both the Delhi government’s autonomy in its sphere of operations marked out in the Constitution and also recognised the Centre’s overriding control, both legislative and executive, in the capital’s affairs. The judgments have used concepts of ‘federal functionalism’, ‘collaborative federalism’ and ‘pragmatic federalism’ to strike a balance.
But the constitutional rights and status of the citizens of Delhi have not been given due consideration.
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The people of Delhi have the right to be treated equally with citizens living in full-fledged states. They also have a whole panoply of rights under Article 21 – the right to life and liberty. Article 239AA in the Constitution, which puts in place a “representative form of Government” for Delhi, has to be interpreted in light of Article 14 and Article 21. Just because the Centre has arguably an overriding interest in the governance of Delhi under Article 239AA does not mean that the citizens of Delhi can be reduced to second-class citizens.
Since a new BJP-led government got elected at the Centre, it has endeavoured to construct an absolutist, authoritarian power structure in Delhi. Through the LG’s office, the Centre has repeatedly undermined the legitimate authority of the AAP administration, severely compromising its ability to perform and serve the citizens of Delhi.
The rational and ethical conduct of administration and the delineation of responsibilities are essential to democracy. Under our Constitution, any scheme of governance ought to prioritise the interests and well-being of the people. It should protect citizens’ rights, foster popular sovereignty, establish a system of checks and balances, uphold the rule of law, and endeavour to provide the full range of essential services and welfare.
Subjecting the people of Delhi to a government run by unelected, inaccessible and electorally unaccountable bureaucrats and Centre-nominated LG on matters reserved at the provincial level severely undermines their constitutional rights.
Among the major problems affecting Delhi’s citizens are poor air quality, inadequate solid waste management, lack of basic amenities in slum clusters, pollution of the Yamuna, lack of property ownership rights for the residents of unauthorised colonies, inadequate housing and deficient municipal services.
When Delhi residents vote for the legislative assembly, they do so with the knowledge that matters such as police, public order and land are beyond the authority of the Delhi government. However, the Delhi administration is directly responsible and accountable for all other matters. The vote is cast in the hope that the elected Delhi government will be able to provide solutions and a better quality of life. However, the current power-sharing structure consistently undermines sound government. Most problems listed above have remained intractable, mainly because of the lopsided power-sharing structure. The unelected LG has all the powers in the world but very little responsibility. Meanwhile the Delhi government is vested with very little authority to fulfil its vast responsibilities.
The existence of a legislature in Delhi should have served as the North Star to determine the constitutional status of the elected Delhi government.
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The legislature embodies the people’s will by granting the legislative assembly constituent rights to legislate on issues reserved for preserving the people’s interests and good governance. It represents Delhi’s autonomy, albeit subject to certain limitations, in the Indian federal framework.
True, as far as Delhi is concerned even the state list is a concurrent list. But it’s an exception, not the rule. The rule is the cabinet form of Government for the National Capital Territory of Delhi embodied in clauses (4) and clause (6) of Article 239AA. Clause (3), which grants Union government the overriding control over GNCTD, is an exception to this rule. Like any exception, it has to be exercised sparingly and for compelling and justifiable reasons. An elected government’s control over services should be read as an attribute of the Constitution’s basic structure.
The Constitution cannot be construed in a way that provides the Parliament unrestricted authority to weaken the Delhi government to the point that it cannot serve the legitimate needs of Delhi’s citizens.
The Delhi Services Ordinance will, in all probability, be declared illegal and thus struck down. But the repeated belittling of Delhi’s elected government will always serve as a chilling reminder of the illegitimate authoritarian regime the Union government attempted to impose on the city’s residents.
Ashish Khetan is a former chairperson of the Dialogue and Development Commission of the Delhi government.
