Editorial of the Day: Manifestly Arbitrary, Clearly Unconstitutional (The Hindu)

Context: The article is discussing a recent legal and political battle between the Delhi government and the central government in India. It explains that in 2015, after the Aam Aadmi Party (AAP) won the Delhi Legislative Assembly elections, the central government took control over services in the National Capital Territory (NCT) through a notification. This action led to a lengthy legal battle between the two governments, which involved multiple rounds of litigation in the Supreme Court of India. In May 2023, the Supreme Court ruled in favour of the Delhi government, asserting its authority over services in the NCT. The article argues that the Delhi Services Ordinance undermines the principles of representative democracy and responsible governance, which are fundamental aspects of India’s constitutional order.

Manifestly Arbitrary, Clearly Unconstitutional  Background

The recent Supreme Court (SC)’s verdict on the issue:

• Recently, a five-judge constitution bench of the Supreme Court held that the Delhi Govt will have legislative and executive control over administrative services in the National Capital Territory of Delhi (NCTD) except with regard to public order, police and land.
• Key highlights of the verdict:
  • Powers of LG: Ruling in Delhi govt’s favour, the SC held that the LG shall be bound by the decision of Delhi government over services, apart from public order, police and land.
  • Federalism in UTs: The Centre had argued that the Constitution is a federal Constitution with a strong unitary bias as far as UTs are concerned.    Contradicting it, SC said that Indian federalism is not unitary and any further expansion of the Union’s power will be contrary to the Constitutional scheme.
  • Principle of triple chain of accountability: The SC stated that Article 239AA establishes a legislative assembly for NCT of Delhi. Members of the legislative assembly are elected by the Delhi electorate. If a democratically elected government is not given the power to control the officers, the principle of triple chain of accountability (Political, Administrative and Public accountability) will be redundant.
  • Principle of collective responsibility: It extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected.

About the central government’s ordinance:

• The ordinance, promulgated by the President of India, seeks to amend the Government of National Capital Territory of Delhi Act, 1991.
• The ordinance extends powers to the Delhi lieutenant governor (LG) over services in the administration of the national capital – basically, the power to transfer and appoint bureaucrats posted to Delhi.
• The ordinance seeks to establish for the first time the National Capital Civil Service Authority (NCCSA).
  • NCCSA will be headed by the Chief Minister of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi as its other two members.
  • The authority will decide the transfer, posting and vigilance matters of all Group A officers and DANICS officers posted in Delhi through majority votes.
  • The ordinance stated that the LG will pass orders to give effect to the recommendations passed by the NCCSA.
  • In case the LG differs with the recommendation made, the LG may, for reasons to be recorded in writing, return the recommendation to the Authority for reconsideration by the Authority.
  • However, the final decision will lie with the Lieutenant Governor of Delhi, the ordinance said.

The Current Governance Model of New Delhi

• Delhi enjoys special status in India. The National Capital Territory of Delhi Act (NCTDA), 1991 created Delhi as a special union territory with the features of a state.
• The 69th Amendment of the Constitution in 1991 gave Delhi the special status.
  • The amendment inserted new Articles 239AA and 239AB after Article 239A of the Constitution.

Article 239: It deals with the Administration of Union territories. It has two provisions:

• A Union territory shall be administered by the President acting through an administrator to be appointed by him with such designation as he may specify, except as otherwise provided by Parliament.
• The President may appoint the Governor of a State as the administrator of an adjoining Union territory, and he shall exercise his functions independently of his Council of Ministers.
• As per Article 239AA:
  • The ‘Union Territory of Delhi’ came to be known as the ‘National Capital Territory of Delhi’ (NCT).
  • The ‘Lieutenant Governor’ (LG) became the administrator of the NCT.
  • A Legislative Assembly with the power to make laws for the NCT with respect to the matters in the State List and Concurrent List of the Constitution was set up.
  • However, the Legislative Assembly was not empowered to make laws on public order, the police, and land.
  • A Council of Ministers and a Chief Minister for Delhi was set up to ‘aid and advice’ the LG on those matters that the Legislative Assembly was empowered to make laws on.
  • In case of a difference of opinion, LG shall refer it to the President for decision and act according to the decision given thereon by the President.
• Article 239AB: It provides for president’s rule in Delhi when the administration of the territory cannot be carried on in accordance with the provisions of Article 239AA. The President’s rule is imposed on a report from the LG.

The Government of National Capital Territory of Delhi (Amendment) Act, 2021

• It amended the Sections 21, 24, 33 and 44 of the Government of National Capital Territory of Delhi Act, 1991.
• Key provisions of the amendment include:
  • Meaning of government: The Amendment Act mentions that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
  • Lt. Governor’s upper hand: The act makes it necessary for the Delhi government to obtain the opinion of the lieutenant governor before taking any executive action.
  • Making rules: The Amendment Act bars the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.
  • Statement of objects & reasons of the Act: The Union government claims that the amendment Act seeks to give effect to the Supreme Court’s interpretation and that it “further defines” the responsibilities of the elected government and the Lt Governor in line with the Constitutional scheme.

What are the key issues with the current model of governance of Delhi?

• Undermining the elected government: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
• Lack of Executive Accountability: The Lieutenant Governor, who is the head of government, is not accountable to the assembly, which undermines the principle of executive accountability.
• Against the privilege of legislature: Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.
• Delay in decision-making: The requirement for LG’s approval for many decisions has led to delays in decision-making, which has impacted the development and governance of the city.
• Accountability issues: The division of responsibilities between the elected government and the Lieutenant Governor has led to difficulties in fixing responsibility for actions and decisions.
• Against Co-operative Federalism: The Act not only negates cooperative federalism but also upturns the fundamental principles laid down by the Supreme Court in Government of NCT Delhi vs Union of India case (2018).
• Control over Services Department: Governance has always been a contentious issue since Delhi is not a full state and the Services department comes under the L-G.

What are the Arguments and Counterarguments in the Issue?

• Argument by the Centre: The Centre has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
• Arguments by the Delhi govt:
  • The Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
  • It had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of basic structure of the Constitution.

Previous Supreme Court’s Judgements on the issue

What is an Ordinance?

• Ordinances are like a law but not enacted by the legislature but rather promulgated by the President of India or governor of a state when the legislature is not in session.

Ordinance Making Power of President

• Article 123 deals with the ordinance making power of the President. The President has many legislative powers and this power is one of them.
• He can only promulgate the ordinance under these circumstances:
  • When both the houses or either of the house is not in session,
  • Circumstances occur where the President thinks it necessary to act without waiting for houses to assemble.
• Properties of ordinance:
  • For an ordinance to exist, it should be approved by the Parliament within six weeks of it being introduced.
  • The maximum duration of an ordinance issued by the president of India can be 6 months and 6 weeks (In case of non-approval by the Parliament).
  • An ordinance can be retrospective in nature.
  • The power of ordinance making is not to be taken as a substitute for the legislative power. Only under special circumstances, ordinances can be rolled out.
  • Ordinances cannot be used to revoke the fundamental rights of the citizens guaranteed by the Indian Constitution.
  • The ordinance would also be declared null and void if both houses passed a resolution opposing it.

Limitations of an ordinance making power of President

• The President can promulgate an ordinance only when both the houses are not in session or only one house is in session.
• For an ordinance to be promulgated, such circumstances should be there which deem it necessary for the President to legislate through the ordinance.

In RC Cooper vs. Union of India (1970) the Supreme Court, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.

Decoding the Editorial

The article is discussing the Long legal battle between the Delhi government and the central government, involving four rounds of litigation before the Supreme Court of India.

Chronology of Events:

• 2015: The Aam Aadmi Party (AAP) won the Delhi Legislative Assembly elections by a significant margin.
• Soon after the AAP’s victory, the central government issued a notification, taking control over services in the National Capital Territory (NCT).
• This action triggered a legal battle between the Delhi government and the central government.
• Over the course of eight years, the legal battle involved four rounds of litigation before the Supreme Court of India.
• 2023: The Supreme Court delivered a decisive ruling in favour of the Delhi government, asserting its authority over services in the NCT.
• Within days of the Court’s judgement, the central government, acting through the President of India, issued an ordinance to amend the Government of National Capital Territory of Delhi Act of 1991.
• Through the ordinance, the central government sought to undo the Court’s judgement by explicitly depriving the Delhi Legislative Assembly of its power to enact laws related to services within the NCT.
• Following this, the central government established a parallel body, comprising the Chief Minister and two bureaucrats, to make service-related decisions for Delhi instead of the Legislative Assembly.

Implications of the Delhi Services Ordinance:

• The Delhi Services Ordinance effectively takes away control of services from the elected government of Delhi and returns it to the central government.
• The central government offers two justifications for this action.
  • • First, at the policy level, the central government argues that Delhi’s status as the national capital necessitates a “balancing” of interests between the elected Delhi government and the central government.
    • Second, at the legal level, it is argued that Article 239AA of the Constitution, which defines Delhi’s “special status,” authorises Parliament to pass laws regarding fields that are typically within the exclusive competence of the states, including “services.”
• However, the article contends that both these arguments fail to address the fundamental constitutional flaw of the Delhi Services Ordinance. It asserts that the ordinance violates and undermines core principles of democracy, representative governance, and a responsive administration.
• The article emphasizes the importance of the services in the functioning of a modern polity. While elected representatives formulate policy and shape the vision, it is the services that are responsible for implementing these policies on a day-to-day basis.
• Therefore, the question of who the services answer to becomes crucial. By default, it has been understood that unless otherwise specified, the directly elected government should have control over services.
• Only this will ensure that the elected representatives have the ability to implement the policies and promises they were elected upon.

Triple Chain of Accountability:

The article discusses the concept of the “triple chain of accountability” recognized by the Court in its May 2023 judgement and its significance in maintaining representative democracy.

• The triple chain of accountability operates as follows: civil servants are accountable to the cabinet, the cabinet is accountable to the Legislative Assembly, and the Legislative Assembly is periodically accountable to the electorate.
• This chain of accountability is crucial to the core constitutional principle of representative government and democracy.
• The Court’s understanding of the triple chain of accountability is reflected in the constitutional provisions concerning Delhi’s status.
  • Article 239AA, which acknowledges Delhi’s “special status” as the capital of the country, already outlines the balance between representative governance and national interest.
  • It explicitly excludes Delhi’s Legislative Assembly and government from legislating or taking executive action in certain fields reserved for the states, such as public order, land, and police.
• Importantly, Article 239AA does not remove services from the purview and jurisdiction of the Delhi Assembly and government.
• It preserves the triple chain of accountability by establishing that Delhi’s bureaucrats are accountable to the government, the government is accountable to the legislature, and the legislature is accountable to the people of Delhi.
• However, the Delhi Services Ordinance disrupts this triple chain of accountability by removing the entire category of services from the Delhi government’s jurisdiction and placing it under the control of the central government.
• While Article 239AA grants Parliament the power to pass laws related to Delhi, including services, the purpose is to maintain flexibility in addressing unforeseen circumstances.
• The removal of services from the Delhi government’s authority goes beyond the intended balance and disrupts the triple chain of accountability.

Author’s Criticism:

• The author asserts that the Delhi Services Ordinance goes against the intended purpose of granting flexibility to Parliament to address unforeseen circumstances.
• Instead of responding to specific circumstances, the ordinance takes away the Delhi government’s power over services entirely and in all circumstances.
• It attempts to grant the central government exclusive power over services, which the Constitution expressly denied.
• Furthermore, the ordinance does not provide any specific or concrete justification for its enactment other than the need to “balance” interests.
• However, this reasoning is flawed as the balance between representative governance and national interest has already been achieved within the Constitution.
• The article concludes that the Delhi Services Ordinance undermines the principles of representative democracy and responsible governance, which are fundamental to the constitutional order. It is also deemed manifestly arbitrary because it lacks a determining principle to justify the wholesale transfer of power from Delhi to the central government. Consequently, the writer considers the ordinance to be clearly unconstitutional.
• He concludes by noting that the final outcome will depend on the Supreme Court’s decision when it is approached for the fifth time to adjudicate this ongoing battle.

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