In a bold move, the Aam Aadmi Party (AAP) has taken the fight against the Centre’s Delhi ordinance to the Supreme Court, labelling it as “unconstitutional” and “manifestly arbitrary”. The AAP, led by Arvind Kejriwal, has called for an immediate halt to the ordinance, arguing that it “sidelines the elected government from control over its civil services”. The party has also announced a large-scale, phase-wise campaign, spearheaded by Kejriwal himself, which will involve burning copies of the ordinance.
Thank you for reading this post, don't forget to subscribe!The ordinance in question, issued by the Centre on May 20, seeks to reverse a Supreme Court order that had previously granted executive powers to the Delhi government in service matters, including the transfer and posting of officers. The Delhi government, in its petition, has argued that the ordinance “shows contempt for the elected government while making a pretense of their involvement through the chief minister”.
What Constitution Says ?
The AAP government has further contended that the ordinance violates the scheme of federal, democratic governance entrenched in Article 239AA, which outlines the governance structure of Delhi. The plea stated that under this scheme, the Lieutenant Governor enjoys discretion only in matters falling outside the Government of the National Capital Territory of Delhi’s legislative and executive domain. The Delhi government has argued that as per this provision, the Lieutenant Governor is bound to act on the aid and advice of the Council of Ministers. It added that the ordinance legislatively overrules a Constitution Bench judgement.
“The principle of collective responsibility in a democracy – incorporated in Article 239AA(6) – requires that the elected government be vested with control over officials posted in its domain. In the federal context, this would require that such control be vested in the regional government – i.e. the GNCTD under Article 239AA – for matters in its domain. This essential feature was secured for the GNCTD by this Hon’ble Court’s 2023 Constitution Bench judgment, and is now sought to be undone by the Impugned Ordinance”, states the petition filed through Advocate-on-Record Shadan Farasat.
The Centre’s ordinance, which was brought on May 20, curtails the powers of Delhi’s elected government. This executive order was issued just days after the Supreme Court handed over control of services in Delhi to the elected government, excluding those related to police, public order, and land.
AAP’s Challenge
In response to this, Kejriwal has been meeting with various opposition parties across the country to garner support, claiming that the ordinance will destroy the federal structure of the country. While several non-BJP parties have supported the AAP over the ordinance, the Congress party has yet to denounce the issue.
Kejriwal has been seeking a legislative blockade of the bill after it was brought to Parliament for consideration. While the result in the Lok Sabha was a foregone conclusion, the chance to defeat the bill in the Rajya Sabha is still an open game. That is why the AAP is seeking Congress’s support for blocking the ordinance in the Upper House. Congress, as the largest opposition party in the Rajya Sabha with 31 members, is crucial to defeating the bill, as the BJP-led NDA has the support of 109 MPs in the Upper House out of the current strength of 238.
The Delhi Government has also argued that the ordinance is an instance of abuse of powers under Article 123 of the Constitution, as there was no urgency to promulgate the ordinance. It has been brought in bad faith to overrule the Supreme Court’s judgment and was hastily notified soon after the Court closed for summer vacations. “The unseemly hurry in reversing a ruling of this Hon’ble Court via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Delhi”, the petition states.
“The Impugned Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service”, the Delhi Government states, pointing out that similar end was sought to be achieved by the Central Government through its 2015 notification, which was invalidated by the Supreme Court.
“The Impugned Ordinance attempts to reverse this Hon’ble Court’s ruling on each of these two aspects by simply amending the GNCTD Act, without amending the ruling’s basis, i.e. the Constitution itself. In so far as the Impugned Ordinance reverses this Hon’ble Court’s decision, it amounts to an impermissible ‘direct overruling’ or ‘review’ and is liable to be struck down”, the petition states.
“By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the GNCTD, the Impugned Ordinance in effect and design allows the Union to take over the governance of Delhi”, the petition further adds.