Unraveling the Constitutional Conundrum: An Analysis of the Delhi Services Ordinance
Context :
The legal battle between the Delhi government and the central government over control of services in the National Capital Territory (NCT) has been an enduring saga, spanning eight years and multiple rounds of litigation. Recently, the Supreme Court of India ruled in favor of the Delhi government, marking a significant milestone in the struggle.
Relevance:
GS-02 (Parliament, Indian constitution)
Prelims:
- Parliament
- Ordinance
Mains Questions:
How does an ordinance impact the cooperative federalism model envisioned by the Constitution? Discuss with suitable examples. (150 words)
What is an Ordinance?
- Article 123 of the Indian Constitution grants President certain law making powers to promulgate Ordinances when either of the Houses of Parliament is not in session during urgent situations.
- Under the Constitution of India, the issuance of ordinances by Parliament is not permissible. However, when a legislative session has not yet commenced, an ordinance remains in effect as law and carries the same force as an Act of the legislature.
- It is essential for the ordinance to be ratified by Parliament within six weeks of its reassembly.
- The maximum validity of an ordinance promulgated by the President is six months and six weeks from the date of its promulgation.
- Similarly, under Article 213 of the Constitution, the Governor of a state can also issue ordinances when the state legislative assembly is not in session.
Cooperative Federalism:
- Cooperative federalism refers to a collaborative approach between the central government and state governments in India, emphasizing shared decision-making, coordination, and cooperation in policy formulation and implementation.
- It promotes a spirit of partnership and teamwork, recognizing that both the central and state governments have distinct roles and responsibilities while working towards common goals for the welfare and development of the country.
- Cooperative federalism fosters intergovernmental relations through mechanisms such as the Inter-State Council, National Development Council (now replaced by NITI Aayog), and various forums for consultation, dialogue, and consensus-building between different levels of government.
- It emphasizes the importance of financial devolution, where the central government provides funds to state governments through schemes like the Finance Commission and centrally sponsored schemes, enabling states to address their unique developmental needs.
- Cooperative federalism also ensures the effective implementation of constitutional provisions like Article 263 (Inter-State Council) and Article 282 (Power of the Union to grant aid to states), which facilitate cooperation, coordination, and resolving intergovernmental disputes.
- Cooperative federalism in India aims to strike a balance between the autonomy of state governments and the need for a strong central government.
Dimensions of the Article:
- Unveiling the Constitutional Quandary
- The Significance of Services in Representative Democracy
- The Triple Chain of Accountability
- Constitutional Provisions and Delhi’s Special Status
- The Deliberate Disruption: Unpacking the Delhi Services Ordinance
Unveiling the Constitutional Quandary
- The Delhi Services Ordinance, designed to curtail the authority of the elected Delhi government and restore control over services to the central government, raises profound questions about the principles that underpin the democracy.
- While the central government justifies this move by invoking the need to balance interests and pointing to Article 239AA of the Constitution, these arguments fail to address the fundamental flaw of the ordinance: its violation of democratic principles, representative governance, and a responsive administration.
The Significance of Services in Representative Democracy
- Services play a crucial role in the functioning of a modern polity, bridging the gap between policy formulation and implementation.
- The control and accountability of services directly impact the effective realization of policies and promises made by elected representatives.
- By default, the authority over services is vested in the directly elected government to ensure the alignment of vision, policy implementation, and public accountability.
The Triple Chain of Accountability
- The concept of the “triple chain of accountability” was recognized by the Supreme Court in its May 2023 judgment.
- This principle establishes the accountability of civil servants to the cabinet, the cabinet to the legislative assembly, and the legislative assembly, in turn, to the electorate.
- Any disruption of this triple chain fundamentally undermines the core constitutional principle of representative government.
Constitutional Provisions and Delhi’s Special Status
- Article 239AA of the Constitution already recognizes Delhi’s special status as the national capital.
- It explicitly restricts the legislative and executive authority of the Delhi government in certain fields, such as public order, land, and the police. However, it does not deprive the Delhi government of control over services.
- The constitutional provisions ensure the preservation of the triple chain of accountability, whereby bureaucrats are accountable to the elected government, which is accountable to the legislative assembly, which, in turn, is accountable to the people.
The Deliberate Disruption: Unpacking the Delhi Services Ordinance
- The Delhi Services Ordinance disrupts the triple chain of accountability by completely removing services from the jurisdiction of the Delhi government and placing them under the control of the central government.
- Unlike the flexibility intended by Article 239AA, the ordinance attempts to usurp exclusive power over services, undermining the principles of representative democracy and responsible governance enshrined in our constitutional order.
- Its arbitrary nature, lacking any compelling reason or determining principle, further raises questions about its constitutionality.
Way Forward:
To restore the balance of power and safeguard democratic principles, it is imperative to review and reconsider the Delhi Services Ordinance. The need for a collaborative approach that respects the unique status of Delhi while upholding representative governance is crucial. A comprehensive dialogue between the central government, Delhi government, and other stakeholders is necessary to find a balanced solution that respects constitutional principles and ensures effective governance.
Conclusion:
The Delhi Services Ordinance’s enactment has escalated the ongoing battle between the Delhi government and the central government, posing significant challenges to the principles of representative governance and accountable administration. By examining the constitutional provisions and the potential repercussions of the ordinance, it becomes evident that it undermines the very foundations of our democratic system. As the legal battle continues, the Supreme Court’s intervention will determine the fate of this protracted struggle, which has far-reaching implications for the future of governance in the National Capital Territory.
