Manifestly arbitrary, clearly unconstitutional

The Delhi Services Ordinance undermines the principles of representative democracy and responsible governance, which are the pillars of India’s constitutional order

Updated - June 29, 2023 01:08 am IST

Published - June 29, 2023 12:16 am IST

A rally by the Aam Aadmi Party in protest against the central government’s ordinance, in New Delhi

A rally by the Aam Aadmi Party in protest against the central government’s ordinance, in New Delhi | Photo Credit: ANI

In 2015, soon after the Aam Aadmi Party won the Delhi Legislative Assembly elections by a significant margin, the central government issued a notification taking control over services in the National Capital Territory (NCT). This sparked an eight-year long legal battle between the Delhi government and the central government, involving four rounds of litigation before the Supreme Court of India. In May 2023, the Court ruled decisively in favour of the Delhi government. However, rather than being the end of the battle, the Court’s decision turned out to be only another pit stop. Within days, the central government, acting through the President of India, issued an ordinance amending the Government of National Capital Territory of Delhi Act of 1991. Through this ordinance, the central government sought to undo the Court’s judgment: it explicitly deprived the Delhi Legislative Assembly from enacting laws pertaining to services within the NCT, and, instead, set up a parallel body, comprising the Chief Minister and two bureaucrats, who would be responsible for taking service-related decisions with respect to Delhi.

In effect, a case of being handed back

Shorn of legalese, and in effect, the Delhi Services Ordinance takes away the control of services from the elected government of Delhi, and hands it back to the central government. A close look at the ordinance reveals two justifications offered by the central government. At the level of policy, the central government argues that Delhi’s status as the national capital requires a “balancing” of interests between the elected Delhi government, and the government at the Centre. At the level of law, it is argued that Article 239AA of the Constitution (which encodes Delhi’s “special status”) expressly authorises Parliament to pass laws with respect to fields that are normally within the exclusive competence of the States. One of these fields is that of “services”.

Both these arguments, however, miss the mark. In particular, they cannot paper over the major constitutional flaw with the Delhi Services Ordinance, i.e., that the ordinance violates and undermines core principles of democracy, representative governance, and a responsive administration.

To understand how, let us begin with first principles. Any functioning modern polity requires the performance of a vast range of daily administrative functions, which must be coordinated at multiple levels. This task is performed by the body that we colloquially call “the Services.” While elected representatives are responsible for formulating policy and shaping vision when it comes to crucial issues such as health or education, it is the services that are responsible for implementing both vision and policy, in concrete terms.

Therefore, the question of who the services are responsible to — or, who they answer to — becomes crucial. In other words, whatever policy or vision that elected legislators may formulate, whether this is actually implemented — and what is actually implemented — depends on who the services report to, and who has power over mundane issues such as transfers, postings, and enforcing discipline.

For this reason, the default position has always been that, unless expressly provided otherwise — it is the directly elected government that should have control over services. This ensures that the representatives whom the people elect upon a certain manifesto, actually have the ability to implement the policies and promises on the basis of which they have been elected.

A chain of accountability

In its judgment in May 2023, the Court explicitly recognised this by formulating the concept of the “triple chain of accountability”. The triple chain of accountability is integral to representative democracy and proceeds as follows: civil servants are accountable to the cabinet. The cabinet is accountable to the legislature, or the Legislative Assembly. And the Legislative Assembly is (periodically) accountable to the electorate. Any action that severs this “triple chain of accountability” fundamentally undermines the core constitutional principle of representative government, which is at the bedrock of our democracy.

The Court’s idea of the “triple chain of accountability” is evident in the constitutional provisions relating to the status of Delhi, and demonstrates why the central government’s defence of the ordinance cannot stand. Delhi’s “special status” — which flows from it being the capital of the country — is already recognised in Article 239AA, in many distinct ways. For example, Article 239AA explicitly deprives Delhi’s Legislative Assembly — and, by extension, the Delhi government — from legislating (or taking executive action) under three fields that are otherwise reserved for the States: public order, land, and the police.

In other words, by not giving to the Delhi government what all other State governments enjoy, Article 239AA already sets out the balance between the interests of representative governance, and national interest in the national capital.

Crucially — and this was a significant factor in the Court’s judgment — Article 239AA does not take away services from the purview and jurisdiction of the Delhi Assembly and the Delhi government. In other words, the very structure of Article 239AA is designed to preserve the triple chain of accountability, where Delhi’s bureaucrats shall be accountable to Delhi’s government, Delhi’s government will be accountable to Delhi’s legislature, and Delhi’s legislature will be accountable to the people of Delhi.

The Delhi Services Ordinance, however, severs this triple chain of accountability by taking away the entire category of services from the jurisdiction of the Delhi government, and, in effect, placing it under the control of the central government.

Now, it is of course true that another feature of the balance that is encoded within Article 239AA is that it grants to Parliament to pass laws, with respect to Delhi, under any of the fields that are otherwise reserved to the States (one of which is “services”). The purpose of this is to maintain a degree of flexibility: while public order, land, and police have been removed from the sphere of the Delhi government entirely, unforeseeable circumstances might arise requiring Parliament to pass specific legislation with respect to other fields as well.

Power over services taken away

The Delhi Services Ordinance, however, does not do that: instead of responding to any specific circumstance, it takes away the Delhi government’s power over services wholesale and in all circumstances. In other words, it tries to take, for the central government, what the Constitution expressly denied: exclusive power over services. Indeed, notably, the ordinance articulates no specific or concrete reason why it has been enacted, other than the need to “balance” interests; this, as we have seen, is illogical, as that balancing has already been achieved within the Constitution.

It can, therefore, be seen that the Delhi Services Ordinance undermines the principles of representative democracy and responsible governance, which are the pillars of our constitutional order. It is also manifestly arbitrary, as it lacks any determining principle that justifies what is, in effect, a wholesale transfer of power from Delhi to the Centre. For these reasons, in the opinion of this writer, it is clearly unconstitutional. It only remains to be seen what the outcome will be when the Supreme Court is approached for the fifth time, to adjudicate this seemingly endless battle.

Gautam Bhatia is a Delhi-based lawyer

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