May 28, 2023

Brazen Assault on Democratic Federalism

IN a brazen authoritarian move, the Modi government has promulgated an ordinance to nullify the Supreme Court’s landmark decision on the Delhi government’s control over administrative officers under its jurisdiction.

The ordinance gives the control over postings and transfer of officers back to the Lt. Governor and hence the centre. This is done by constituting a National Capital Civil Service Authority which will recommend the transfer and posting of officers in Delhi. The body will consist of the chief minister, chief secretary, and the principal secretary. Since decisions will be decided by majority, the two bureaucrats appointed by the centre can overrule the elected chief minister. Further, in case of a difference of opinion between the Lt. Governor and the authority, the decision of the Lt. Governor would be final.

By this ordinance, the central government has defied the Supreme Court’s verdict and challenged the court’s right to interpret the constitution.

The five-member constitution bench headed by Chief Justice Chandrachud had given a unanimous and well-reasoned judgement on the rights and powers of an elected government in Delhi. The judgement stated unambiguously that “The principle of democracy and federalism are essential features of our Constitution and form a part of the basic structure”. It also held that, “If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple chain of collective responsibility would become redundant.”

Rejecting the centre’s argument that Delhi being the national capital, the administrative services should remain under its jurisdiction, the judgement gives the elected government power to deal with officers in all spheres which fall under the competence of the legislative assembly, except public order, police and land as provided for in the Government of National Capital Territory of Delhi Act.

The Supreme Court upheld the principle of democratic representative government, the accountability of the administrative officers to the elected government and adherence to the federal principle. All this is rejected by the authoritarian step of the ordinance.

By this willful defiance of the court, the Modi government has declared its contempt for democracy and federalism. All through its nine-year tenure, the Modi government has been attacking the rights of elected non-BJP state governments and using the governor to violate the federal principle. This assumed grave proportion of an assault on the constitutional set-up itself by dismantling the state of Jammu and Kashmir and converting it into two union territories.

This ordinance takes the assault on democratic federalism to a new level by legitimising the disempowerment of an elected government.

The Supreme Court as the custodian of the constitution will have to step in to nullify this draconian measure. At the political level, the entire opposition should unitedly oppose the ordinance when it is sought to be legislated through in parliament. The Congress party should stop dithering about its stand. The animosity towards Arvind Kejriwal and the AAP cannot determine its position. This is not about any individual leader or a single party – this is a basic attack on democracy and federalism.

How unitedly the opposition parties move to oppose the ordinance will have a bearing on the unity to be forged for the bigger battle against the BJP looming ahead.

(May 24, 2023)