Modi govt Obstruction in Delhi Govt overriding SC orders

Updated: 5/20/2024

Last Updated: Aug 2023

21 May 2015: Modi govt issues notification to shift ‘Services’ department to Center appointed LG^[1]

04 July 2018: SC orders LG is bound to act on aid and advice of Council of Ministers, refers Services issue to separate bench

11 May 2023: SC in an unanimous ruling by a five-judge Constitution bench headed by Chief Justice DY Chandrachud gives ‘Services' control back to Delhi govt

19 May 2023: Ordinance to “reverse the SC order” on Friday night, immediately after SC goes on 6 weeks holidays

Aug 2023: Delhi Services Bill

¶ Excerpts from 21 experts' opinion against Delhi Services Ordinance

The ordinance, which seeks to alter the distribution of powers between the central government and the elected government of Delhi, has been widely denounced as an affront to constitutional morality and an attack on the principles of representative democracy and federalism

The below 21 Legal opinions are a smear on the face of Autocratic Government at the center:

1. Madan B Lokur, Retired Justice of the Supreme Court of India, wrote the most consequential article on the subject with an article for TheIndianExpress – “Centre’s Delhi Ordinance disregards constitutional morality. Ambedkar and SC concur”^[2], the synopsis itself has these strong words – “It is quite clear that the intent and purpose is to overturn the unanimous judgment of the Constitution Bench of the Supreme Court. The Ordinance comes out as a constitutional fraud on the people of Delhi, its elected representatives and the Constitution”. He expanded those thoughts, “It has given the government of India unbridled power and reduced the chief minister and council of ministers of Delhi to something less than a rubber stamp.” Effectively The Chief Minister is the titular head of the authority and despite being the elected representative of the people of Delhi, he is reduced to a cipher. Also “Section 45D of the Ordinance states that the power to appoint any chairperson, member or office-bearer in any commission, statutory authority, board, corporation lies with the President, meaning thereby the Government of India. Effectively, Delhi’s elected government is left rudderless and the will of the people is rendered inconsequential.

2. Senior Supreme Court advocate Gopal Sankaranarayanan in his article for TimesOfIndia “That wasn’t a Capital Idea”^[3] called Delhi Ordinance, an ‘Absurd Ordinance’ and said “It is high time such disregard for the legal process was dealt a firm blow – Bard the Bowman must take aim at smaug and let fly his arrow”.

3. Bishwajit Bhattacharyya, Senior advocate in the Supreme Court of India and a Former Additional Solicitor General of India in his article for TheHindu – “An ordinance, its constitutionality, and scrutiny”^[4] scribed, Altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368; there is not an iota of doubt. The ordinance promulgated under Article 123 of the Constitution to expand the scope of excepted matters in Article 239AA(3)(a) is void ab initio and is liable to be struck down for bypassing constitutional amendment. It amounts to a colourable exercise of power. Article 123 is no substitute for Article 368 (amendment of the Constitution) in Part XX. He Predicted “If the ordinance is challenged, the Union of India is unlikely to succeed through either route to wrest power of “services” in Delhi. It is likely to be struck down since it expands excepted matters in Article 239AA(3)(a).”

4. Former Lok Sabha Secretary General P.D.T. Achary also authored an article for TheFrontline -“Centre’s ordinance over Delhi government services is anti-Constitution”^[5] – He gave the legal basis for explaining the unconstitutionality of the Ordinance. In Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality (1969) Supreme Court had emphasised that the legislature does not possess judicial power, which alone can nullify a court’s order. In People’s Union of Civil Liberty vs Union of India, the Supreme Court has reaffirmed this point in the following words: “A declaration that an order made by a Court of Law is void is normally a part of the judicial function. Legislature cannot declare that a decision given by the Court is not binding or is of no effect. It can change the basis on which a decision is given by the Court, but it cannot review and set at naught such a decision.” According to various supreme court judgements, any legislation made to nullify a court’s judgment without changing the basis of the judgment is invalid. Thus, we can see that Section 3A inserted by Delhi ordinance is invalid on this ground. Also the ordinance asked Chief Secretary to the Council of Ministers to have the power to scrutinise the decision of the Cabinet, this provision makes the aid and advice doctrine stand on its head. Also the decision on summoning, prorogation and dissolving of the Assembly will now be taken by Chief Secretary.

5. Pritam Baruah is a legal philosopher and dean of the School of Law, BML Munjal University wrote an article for TheIndianExpress “Delhi Services Ordinance: It is not ‘undemocratic’ for the Supreme Court to do its job”^[6] – The ordinance aims to do what only a constitutional amendment can do, Even a constitutional amendment would have to pass the muster of the basic structure test that identifies democracy and federalism as features of the Constitution. And concluded by calling upon The Court to be “Forthcoming tussle over democracy in Delhi, courts should count democracy in their armour and not as a hindrance in presenting the best interpretation of our Constitution.”

6. Mukund P Unny, Advocate-on-Record at the Supreme Court of India authored, TheIndianExpress article “With its ordinance, Centre challenges Supreme Court and undermines federalism”^[7] – He reminded, The Centre should be mindful of the words of Benjamin Cardozo who said: “A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future.” Supreme Court in its 2018 judgment in Govt of NCT of Delhi v. Union of India held that the ideas of pragmatic federalism and collaborative federalism will fall to the ground if it were to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers.

7. Faizan Mustafa, expert in constitutional law writes for TheIndianExpress – “Is the Delhi ordinance a brazen overruling of the Supreme Court verdict?”^[8] – ‘To undo a judgment, Parliament has to remove its ‘very basis’ in law.’ Based on the ordinances since independence and their fate after overturning SC Judgements, author concluded “It is unlikely that the SC will stay the operation of the ordinance as the matter yet again would go to a constitution bench. The SC has to examine whether the basis of judgment has really been removed, particularly on the issue of representative government.”

8. Pratap Bhanu Mehta, Contributing Editor at the Indian Express. He has been vice-chancellor of Ashoka University and president, Centre Policy Research. He authored an article for TheIndianExpress, “Brazen and ominous, Centre’s Delhi ordinance defies the Supreme Court, bodes ill for federal democracy.”^[9] It’s synopsis read : “By negating the court’s ruling to take over services, the government has intentionally created a full-blown constitutional crisis. The Supreme Court will be damned if it does (react) and damned if it does not.” He also opined “by taking the ordinance route, the government has intentionally created a full-blown constitutional crisis…” It is in effect saying: “We are using the purely technical possibility to negate everything you said about preserving the powers of an elected government in Delhi.” He also hinted at Modi following Trump to try and stay in office with whatever means possible – The BJP has shown that it cannot tolerate another political party ruling in Delhi. It uses every trick in the book to subvert the government of Delhi. Is such a political party, when faced with the prospect of an imminent defeat, likely to relinquish power smoothly and easily?. Ended with these strong words – We have a party in power at the Centre that will not respect law, constitutionalism, sensible administrative practice, and the fair rules of electoral politics. Its brazenness is a sign that it will hold onto power at all costs.

9. Yash Mittal, Assistant Professor (Law) at the ITM University wrote in Bar and Bench – “The Ordinance dilutes the democratic and representative features of the Constitution”^[10], he opined “Such a move to exclude the services from the ambit of the GNCTD through an Ordinance is invalid, as it would be possible only through the route of a constitutional amendment, which is missing in the present case. It is very dangerous and worrisome in a democratic setup as it a direct attack on the “basic structure” of the Constitution which cannot be taken away or altered even through a constitutional amendment.”.

10. Manu Sebastian, Managing Editor of LiveLaw “Why The GNCTD Ordinance Which Nullifies Supreme Court Judgment Is Unconstitutional?”^[11] – Ordinance, which mocks the Supreme Court. So, even applying the principles of primacy of elected government, triple chain of accountability and cooperative federalism which are discussed in the judgment, the Ordinance cannot pass the muster. The Ordinance is nothing but a colourable legislation which does not square with the Constitution Bench judgment both in its letter and spirit.

11. Mathew Idiculla, faculty of Law at Azim Premji University in his article for TheHindu – “The Delhi ordinance is an unabashed power-grab”^[12] wrote, While the legislature can alter the legal basis of a judgment, it cannot directly overrule it. Further, executive law-making through an ordinance, as the Supreme Court held in D.C. Wadhwa (1987), is only to “meet an extraordinary situation” and cannot be “perverted to serve political ends”. Most crucially, adding an additional subject of exemption (services) to the existing exemptions (land, public order, and police) of Delhi’s legislative power listed in Article 239AA, without amending the Constitution, is arguably an act of constitutional subterfuge. Finally, creating a civil services authority where bureaucrats can overrule an elected Chief Minister destroys long-established norms on bureaucratic accountability. He concluded “the ordinance is a direct assault on federalism and democracy. Such an unabashed power-grab by the Union government needs to be opposed by all who care for the future of India as a federal democracy.”

12. SN Misra, Emeritus Professor Constitutional Law at Kalinga Institute of Industrial Technology, University wrote for Scroll.in – “Centre’s ordinance on Delhi bureaucrats bypasses parliament, promotes its own political interests”^[13], The ordinance creates the National Capital Civil Service Authority headed by the chief minister with the chief secretary and home secretary as its other members. He termed it a “ludicrous structure” where two bureaucrats who report to the chief minister can overrule him. In the case of RC Cooper vs Union of India in 1970, when the government nationalised 14 banks through an ordinance, the Supreme Court had said that the ordinance was issued not because “immediate action was required but to bypass the parliamentary debate”. In KK Singh vs State of Bihar case in 2017, The Court observed that the court will look “if it [an ordinance] has been passed based on relevant material or whether it amounted to a fraud on power or was actuated by an oblique motive”. He Concluded “the constitutional morality and power of the Supreme Court to deliver clear rulings on areas obfuscated by conflicting subjective perspectives must be respected. Judicial review, a basic foundational structure of the Constitution, cannot be obliterated by the blatant misuse of promulgating ordinances to promote political interests and bypass parliamentary debate.”

13. Advocate Gautam Bhatia, authored the article for TheHindu – “Manifestly arbitrary, clearly unconstitutional”^[14], he wrote – 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. 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.

14. Burhan Majid is an Assistant Professor of Law at the School of Law, Jamia Hamdard, and a doctoral fellow at NALSAR University of Law, authored for TheQuint Opinion piece – “Delhi Ordinance and Executive Overreach: On the Supreme Court’s Deference”^[15] he scribed – The ordinance is an executive coup of sorts with a message that the Centre does not want the Court to interfere in what it wants to control in the States and Union Territories (UTs). It also speaks volumes about the Government of India’s contemptuous approach toward the principles of the rule of law and democracy. He concluded “The Delhi ordinance must act as a wake-up call for the Court to uphold the Constitution and act as a guardian against the state power.”

15. Former Lok Sabha Secretary General P.D.T. Achary told ThePrint^[16] – “This ordinance changes everything. Its ostensible purpose was to take away the elected government’s power to decide on services (transfer, postings and work allocation). But in the guise of that, they (Centre) are doing much more,” He pointed out that the elected government will lose the power to appoint members or office-bearers to statutory bodies, since it now rests with the L-G. “The language used in the section does not specify that it has a bearing on statutory bodies that were established only through Acts passed in Parliament. Rather, it covers everything (Even those created by Delhi assembly like Delhi Commission for Women and others)”

16. Senior Supreme Court Advocate Abhishek Manu Singhvi^[17] who led the Delhi Govt’s case before Constitutional Bench of Supreme Court and WON, called The Delhi ordinance – “An Act of Bad, Poor, Graceless Loser – Basis of Constitution Bench Judgement was Federalism; Delhi Govt’s critical, unique status under 239AA and not just being a mere Union Territory; The Autonomy of Elected Govt; Chief Secrertary to be accountable to Elected Govt – None of these can be changed by Ordinance”

17. Senior advocate Sanjay Hegde^[18] – The direct undoing of a court judgment “is an encroachment on judicial power” and can be struck down. The fundamental principles of democracy and federalism on which the Supreme Court judgment was based has effectively been thrown overboard by a stroke of the executive pen. This is yet another misadventure where they have not moved it through legislation, but timed it perfectly with the last day of the court.

18. TheIndianExpress Editorial on 22nd May^[19] – “Centre’s Delhi ordinance rides rough-shod over SC verdict.” -The Centre’s ordinance, promulgated on Friday, unwisely and unabashedly undoes the judicial and judicious settlement of a long battle that gave primacy to representative government in Delhi. The ordinance upends democratic accountability. Two bureaucrats appointed by the Centre can now over-rule its elected chief minister. It undermines constitutional federalism in both letter and spirit. It concluded with an appeal to the supreme court – “The SC must ensure that the eloquent and essential defence of democratic federalism by its Constitution bench is not hijacked. The Delhi case is a talismanic test of checks and balances in the face of an overweening Centre, Executive and Legislature.”

19. TheHindu Editorial on 22nd May^[20] – The more pertinent issue is the political intent of the Centre’s move. The Centre under the current BJP dispensation has been confrontational, rather than cooperative, with States in resolving governance issues. It has shown little regard for elected governments at lower levels, while claiming for itself all powers on the grounds of its electoral majority.

20. TimesOfIndia Editorial on 22nd May^[21] had this to say – “Capital Conundrum: Ordinance on control of Delhi admin overturns SC’s correct argument on representative democracy” – The ordinance is flawed in its staunch refusal to recognise the powers of an elected government. Delhi’s people don’t deserve this never-ending squabble.

21. TheTelegraph Editorial on 25th May^[22] – “Holding on: Editorial on Centre’s latest ordinance on control of services in Delhi” – The ordinance affects not just NCTD but is an omen for all Opposition states. The ordinance would ensure the loyalty of bureaucrats to the Union government rather than the National Capital Territory government under which they have been posted. Allied to this is the bulldozing of people’s rights. Taking over an elected government’s rights to hand them over to unelected politicians in a bid for unopposed power attacks the basis of democracy. The government has mounted — not for the first time, but with dizzying frankness — a severe assault on cooperative federalism, besides targeting democratic structures and processes.

References:

Original Article - https://www.youthkiawaaz.com/2023/07/law-experts-speak-with-one-voice-only-bjp-dissents

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Modi govt Obstruction in Delhi Govt overriding SC orders

¶ Excerpts from 21 experts' opinion against Delhi Services Ordinance

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