The Delhi ordinance is an unabashed power-grab

Source– The post is based on the article “The Delhi ordinance is an unabashed power-grab” published in “The Indian Express” on 5thJune 2023.

Syllabus: GS2- Issues pertaining to federalism

Relevance- Constitutional issues related to National Capital Territory of Delhi

News– On May 19 this year, the Union government promulgated an ordinance to amend the Government of National Capital Territory of Delhi (NCTD) Act, 1991. It nullified the Supreme Court judgement of May 11 on the powers over bureaucratic appointments in Delhi.

The SC viewpoint on the position of Delhi in India’s federal constitutional scheme?

As per Supreme Court, Article 239AA in the Constitution has accorded the National Capital Territory of Delhi a sui generis” status.

The Court held that there is no “homogeneous class” of Union Territories and States. The Indian Constitution has several examples of special governance arrangements. These treat federal units differently from each other.

India’s federal system has been described as asymmetric due to the special status accorded to Jammu and Kashmir under Article 370 and special protections under Article 371, and 5th and 6th Schedule Areas.

SC used the asymmetric federalism framework to clarify the position of the NCTD in India’s federal scheme.

It remarked that though NCTD is not a full-fledged State. Article 239AA created an asymmetric federal model for the NCTD. The unique constitutional status conferred upon it makes it a federal entity.

For countries with deep ethnic, linguistic, and cultural differences, an asymmetric model of federalism is desirable. It accommodates the interests of various social groups through territorial units.

The Court noted that the principles of federalism and democracy are interlinked. Use of legislative power by the state fulfils people’s aspirations.

Federalism creates “dual manifestation of the public will”. Here, the priorities of the two sets of governments are different.

Why is the presidential ordinance problematic?

It does not augur well for judicial independence. The legislature can alter the legal basis of a judgment. But it cannot directly overrule it.

The power of ordinance is only to meet an extraordinary situation. It cannot be used to serve political ends. The ordinance by the Union government is an act of constitutional subterfuge.

The ordinance creates a civil services authority where bureaucrats can overrule an elected Chief Minister. It destroys long-established norms on bureaucratic accountability.

For all these reasons, the ordinance is a direct assault on federalism and democracy.

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