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The bonhomie between leaders at the Patna conclave of Opposition parties was disrupted by a visible and vocal discord between the Congress and AAP leadership on account of the former’s reluctance to commit itself to opposing the ratification of ‘The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023’, by the Rajya Sabha.
The central government’s ordinance that virtually strips the elected government of Delhi (GNCTD) of its administrative control over the civil service and which is seen as an extension of the unending political slugfest between the BJP and AAP, will test the boundaries of politics within the constitutional framework. The challenge to the ordinance’s constitutionality can be mounted on several grounds. It can be impugned as a legislative excess intended to negate the effect of the Supreme Court’s May 11 judgment which affirmed the GNCTD’s legislative and executive competence over services dealing with subjects originally reserved for the Union Territory. It can thus be faulted as the legislature’s impermissible encroachment on the judicial sphere, clearly interdicted by the doctrine of separation of powers embedded in the Constitution. The promulgation of the ordinance is questionable as an onslaught on the constitutionally ordained and sacrosanct federal structure premised on a dispersal of sovereign power between the Union and its constituents, anchored in a distrust of concentrated power. It is thus pre-eminently arguable that the concurrent legislative power of Parliament cannot be exercised to emasculate the GNCTD’s long recognised legislative and executive control over matters originally within its remit. A contrary interpretation would be destructive of the first principles of federalism, a part of the Constitution’s inviolate basic structure. It is also arguable that in the absence of demonstrable urgency, resort to the extraordinary constitutional power of promulgating an ordinance, bypassing the deliberative processes of the Houses of Parliament, is impermissible in terms of the law declared by the apex court in that regard.
Most importantly, the gravamen of the challenge to the constitutionality of the ordinance is its frontal assault on representative democracy and the parliamentary form of government in as much as it transfers the overriding administrative control and power to the unelected lieutenant governor acting as representative of the Union government. The ordinance enables departmental secretaries to disregard policy decisions by the council of ministers. They are now not answerable to the chief minister or ministers representing the popular will but to the lieutenant governor, in his capacity as the President’s delegate and a nominee of the Union government. Pertinently, the power to make key appointments to posts directly concerned with the peoples’ welfare and in departments providing vital services to the citizens of Delhi now vest with the President and not the government chosen by the people. In its entirety and read as a whole, the ordinance diminishes the office of the chief minister to an ornamental role in a brazen disregard of the popular will. The ordinance is in the teeth of the unambiguous declaration by a Constitution Bench of the Supreme Court that “the exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Article 239-AA and 239-AB would turn futile if the Government of Delhi that enjoys the confidence of people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for NCT of Delhi.” (GNCTD, 2018). This unambiguous reiteration of the democratic ethic is now an entrenched facet of our constitutional jurisprudence.
In the broader constitutional scheme, democratic institutions of the Indian state are not expected to “offset against each other” and are mandated to work in “an amicable community of purpose.” For this reason as well, the Union government’s legislative action through the ordinance route without a clear necessity, makes it constitutionally suspect.
Clearly, the challenge to the ordinance’s legality will be strongly resisted. The Union government’s counter arguments are likely to be located in the seductive appeal of Parliament’s legislative supremacy, a legal presumption in favour of legality of legislation, the role of central government as the principal custodian of public interest in the GNCTD and in the special needs and responsibilities of Delhi as the national capital. Whether or not these submissions will persuade the Supreme Court to uphold the ordinance will depend upon the Court’s perception of the justice of the cause in its overall context. In the balancing and weighing of competing constitutional values, the Court is expected to fix their hierarchy and boundaries, drawing upon constitutional scholarship, the lessons of history and the political ground realities, considering that constitutional adjudication is seldom divorced from its political context. In reaching a decision, the Court, as the designated arbiter of constitutional conscience, is expected to lean in favour of the republic’s foundational values and reinforce its role as the ultimate harmoniser of the nation’s core values. In this regard, judicial review of the constitutionality of the ordinance need not be viewed as adversarial but as part of an ongoing dialogue between democratic institutions to deepen democracy and constitutionalism.
In what may be a long drawn legal battle, the highest court is expected in the interregnum to ensure democratic governance for the citizens of Delhi based on constitutional fundamentals. And political leadership on either side is expected to recognise that an unending conflict between the Union and states does not augur well for our democracy. A nation on the move, seeking to optimise its potential, yearns for leadership that can resolve debilitating conflicts, which adversely impact the resilience of Indian democracy and question the quality of our politics.
The writer is former Union Minister of Law and Justice The views expressed are personal
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