Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023: Manifestly arbitrary, clearly unconstitutional

Source: The post is based on the article “Manifestly arbitrary, clearly unconstitutional” published in “The Hindu” on 29th June 2023. 

Syllabus: GS2- Issues pertaining to federalism 

Relevance: Constitutional issues related to NCT of Delhi 

News:  The article explains the issues related to the current tussle between the Delhi government and the central government for control over service. 

What is the issue? 

In 2015, Aam Aadmi Party won the Delhi Legislative Assembly elections, The central government issued a notification taking control over services in the National Capital Territory. This sparked a long legal battle between the Delhi government and the central government.  

In May 2023, the Court ruled decisively in favour of the Delhi government. Within days, the central government issued an ordinance amending the Government of National Capital Territory of Delhi Act of 1991.  

Through this ordinance, the central government wants to undo the Court’s judgement. It deprived the Delhi Legislative Assembly from enacting laws pertaining to services within the NCT. 

What are the justifications offered by the central government in favour of the ordinance? 

Delhi’s status as the national capital requires a “balancing” of interests between the Delhi government and the central government.  

Article 239AA of the Constitution authorises Parliament to pass laws in areas that fall within the exclusive domain of the States. One of these fields belongs to “services”. 

What are issues related to central government ordinance? 

The ordinance violates and undermines the core principles of democracy, representative governance, and a responsive administration.  Any functioning modern polity requires the performance of a vast range of daily administrative functions.  

Violates the triple chain of accountability: In its judgement in May 2023, the Court explicitly recognised this by formulating the concept of the “triple chain of accountability”.

Note: The triple chain of accountability is integral to representative democracy. Civil servants are accountable to the cabinet. The cabinet is accountable to the Legislative Assembly. The Legislative Assembly is accountable to the electorate.  

Any action that impacts this “triple chain of accountability” undermines the core constitutional principle of representative government.  The Delhi Services Ordinance impacts this triple chain of accountability by taking away the services from the jurisdiction of the Delhi government.

Impacts the degree of flexibility: Delhi’s “special status” is already recognised in Article 239AA. Article 239AA already creates the balance between the interests of representative governance, and national interest in the national capital.

Article 239AA also grants power to Parliament to pass laws, with respect to Delhi, under any of the fields that are otherwise reserved to the States.

The purpose of this is to maintain a degree of flexibility. Unforeseeable circumstances might require Parliament to pass specific legislation.

The Delhi Services Ordinance does not respond to any specific circumstance. It takes away the Delhi government’s power over services in all circumstances.

Indeed, the ordinance articulates no specific or concrete reason for its enactment. It only mentions the need to “balance” interests. This is illogical as that balancing has already been achieved within the Constitution.