The Delhi ordinance is an unabashed power-grab
Prelims:
Anti-defection law, Article 123, Article 74, Article 368, Tenth schedule, Article 239AA, powers of speaker etc
Mains GS Paper II:
Mains GS Paper II:
State legislature- functioning, role and conduct of business, role of judiciary in checks and balances etc
ARTICLE HIGHLIGHTS
The Union government promulgated an ordinance to amend the Government of National Capital Territory of Delhi (NCTD) Act, 1991 that effectively nullified the Supreme Court judgment on the powers over bureaucratic appointments in Delhi.
Context
Article 239AA:
Article 123:It grants the President certain law-making powers to promulgate ordinances during the recess of Parliament.
These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.
Governors of a state can issue ordinances under Article 213 of the Constitution, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
The ordinance making power is the most important legislative power of the President and the Governor.It has been vested in them to deal with unforeseen or urgent situations.
INSIGHTS ON THE ISSUE
Context
Article 239AA:
Article 123:It grants the President certain law-making powers to promulgate ordinances during the recess of Parliament.
These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.
Governors of a state can issue ordinances under Article 213 of the Constitution, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
The ordinance making power is the most important legislative power of the President and the Governor.It has been vested in them to deal with unforeseen or urgent situations.
Background:
Five-judge Constitution Bench: It unanimously held that the elected government of Delhi had legislative and administrative powers over “services”.
Issues with the ordinance:
The ordinance negates a Constitution Bench judgment of the Supreme Court that brought “services” under the Government of National Capital Territory of Delhi (NCTD).
The ordinance removes Entry 41 (services) of the State List from the Delhi government’s control and creates a National Capital Civil Service Authority, consisting of theChief Minister
Chief Secretary
Principal Secretary-Home, to decide on service matters in Delhi.
Decisions of the Authority will be made through majority voting, which means that two Union-appointed bureaucrats could overrule the Chief Minister.
The ordinance provides that if a disagreement arises between the Authority and the Lieutenant Governor (LG), the decision of the LG shall prevail.
The ordinance raises multiple legal and political questions regarding federalism, democracy, bureaucratic accountability, executive law-making, and judicial review.
Congress leader said: “cooperative federalism principles don’t fit” Delhi since it is the “National Capital”.
The ordinance removes Entry 41 (services) of the State List from the Delhi government’s control and creates a National Capital Civil Service Authority, consisting of theChief Minister
Chief Secretary
Principal Secretary-Home, to decide on service matters in Delhi.
Decisions of the Authority will be made through majority voting, which means that two Union-appointed bureaucrats could overrule the Chief Minister.
The ordinance provides that if a disagreement arises between the Authority and the Lieutenant Governor (LG), the decision of the LG shall prevail.
The ordinance raises multiple legal and political questions regarding federalism, democracy, bureaucratic accountability, executive law-making, and judicial review.
Congress leader said: “cooperative federalism principles don’t fit” Delhi since it is the “National Capital”.
India’s federal constitutional scheme:
The Supreme Court noted that the addition of Article 239AA in the Constitution accorded the National Capital Territory of Delhi (NCTD) a “sui generis” status.
The Court held that there is no “homogeneous class” of Union Territories and States.India’s Constitution has several examples of special governance arrangements which treat federal units differently from each other.
Special provisions for States under Article 371 are in the nature of “asymmetric federalism” made for “accommodating the differences and the specific requirements of regions”.
India’s federal system. It has been described as asymmetric due to the special status it accorded Jammu and Kashmir under Article 370 (before its dilution) and special protections under Article 371, and 5th and 6th Schedule Areas.
What is striking about the Court’s judgment?It is that it used the asymmetric federalism framework to clarify the position of the NCTD in India’s federal scheme.
It remarked that though NCTD is not a full-fledged State, since its Legislative Assembly is constitutionally entrusted to legislate upon subjects in the State and Concurrent Lists.The insertion of Article 239AA created an “asymmetric federal model” for the NCTD.
The NCTD remains a Union Territory, the “unique constitutional status conferred upon it makes it a federal entity”.
Why is the invocation asymmetric federalism?
The Court held that there is no “homogeneous class” of Union Territories and States.India’s Constitution has several examples of special governance arrangements which treat federal units differently from each other.
Special provisions for States under Article 371 are in the nature of “asymmetric federalism” made for “accommodating the differences and the specific requirements of regions”.
India’s federal system. It has been described as asymmetric due to the special status it accorded Jammu and Kashmir under Article 370 (before its dilution) and special protections under Article 371, and 5th and 6th Schedule Areas.
What is striking about the Court’s judgment?It is that it used the asymmetric federalism framework to clarify the position of the NCTD in India’s federal scheme.
It remarked that though NCTD is not a full-fledged State, since its Legislative Assembly is constitutionally entrusted to legislate upon subjects in the State and Concurrent Lists.The insertion of Article 239AA created an “asymmetric federal model” for the NCTD.
The NCTD remains a Union Territory, the “unique constitutional status conferred upon it makes it a federal entity”.
Why is the invocation asymmetric federalism?
The Court was a mute spectator when this idea was annihilated in Jammu and Kashmir.
The Court noted that the principles of federalism and democracy are interlinked since the States’ exercise of legislative power gives effect to people’s aspirations Federalism creates “dual manifestation of the public will” in which the priorities of the two sets of governments “are not just bound to be different, but are intended to be different”.
A clear expression of the federal principle punctures hollow exhortations of “cooperative federalism” that have been weaponized to centralize Indian politics.
The Court noted that the principles of federalism and democracy are interlinked since the States’ exercise of legislative power gives effect to people’s aspirations Federalism creates “dual manifestation of the public will” in which the priorities of the two sets of governments “are not just bound to be different, but are intended to be different”.
A clear expression of the federal principle punctures hollow exhortations of “cooperative federalism” that have been weaponized to centralize Indian politics.
Problems with the presidential ordinance:
Government’s swift and brazen act of undoing a Constitution Bench judgment does not augur well for judicial independence.
The legislature can alter the legal basis of a judgment, it cannot directly overrule it.
Executive law-making through an ordinance, as the Supreme Court held in D.C. Wadhwa (1987), is only to “meet an extraordinary situation” and cannot be “perverted to serve political ends”.
Adding an additional subject of exemption (services) to the existing exemptions (land, public order, and police) of Delhi’s legislative power listed in Article 239AA, without amending the Constitution, is arguably an act of constitutional subterfuge.
Creating a civil services authority where bureaucrats can overrule an elected Chief Minister destroys long-established norms on bureaucratic accountability.
The legislature can alter the legal basis of a judgment, it cannot directly overrule it.
Executive law-making through an ordinance, as the Supreme Court held in D.C. Wadhwa (1987), is only to “meet an extraordinary situation” and cannot be “perverted to serve political ends”.
Adding an additional subject of exemption (services) to the existing exemptions (land, public order, and police) of Delhi’s legislative power listed in Article 239AA, without amending the Constitution, is arguably an act of constitutional subterfuge.
Creating a civil services authority where bureaucrats can overrule an elected Chief Minister destroys long-established norms on bureaucratic accountability.
Way Forward
The ordinance is a direct assault on federalism and democracy.
Unabashed power-grab by the Union government needs to be opposed by all who care for the future of India as a federal democracy.
As the foundations of India’s constitutionalism are threatened, we need a new politics of federalism that reflects and articulates the underlying values of federalism consistently.
The Union of India’s decision to prefer review (Article 137) and promulgate an ordinance (Article 123) simultaneously is ill-conceived.If the ordinance is challenged, the Union of India is unlikely to succeed through either route to wrest power of “services” in Delhi.
Krishna Kumar Singh vs State of Bihar (2017): The Court held that the satisfaction of the President under Article 123 is not immune from judicial scrutiny.The powers under Article 123 are not a parallel source of law making or an independent legislative authority.
Court is empowered to look into the relevance of material placed before the President, but not its sufficiency or adequacy.
Unabashed power-grab by the Union government needs to be opposed by all who care for the future of India as a federal democracy.
As the foundations of India’s constitutionalism are threatened, we need a new politics of federalism that reflects and articulates the underlying values of federalism consistently.
The Union of India’s decision to prefer review (Article 137) and promulgate an ordinance (Article 123) simultaneously is ill-conceived.If the ordinance is challenged, the Union of India is unlikely to succeed through either route to wrest power of “services” in Delhi.
Krishna Kumar Singh vs State of Bihar (2017): The Court held that the satisfaction of the President under Article 123 is not immune from judicial scrutiny.The powers under Article 123 are not a parallel source of law making or an independent legislative authority.
Court is empowered to look into the relevance of material placed before the President, but not its sufficiency or adequacy.
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