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In his letter, Raghav Chadha stated that “On 11 May 2023, a Constitution Bench of the Supreme Court unanimously held that as a constitutional requirement, civil servants serving in the government of the NCT of Delhi are accountable to the elected arm of the government, i.e. the elected Council of Ministers headed by the Chief Minister. This link of accountability was considered crucial to the accountability model according to the democratic and people-friendly form of government.”
The MP added that the ordinance has broken this model by taking control away from the elected government of Delhi and handing it over to the unelected LG. “The design of the Ordinance is clear, i.e. to confine the NCT Government of Delhi to its elected arm only – enjoying the mandate of the people of Delhi, but depriving it of the governing machinery necessary to carry out that mandate. This has put the GNCTD in a crisis of governance, endangering day-to-day governance and prompting it to defy the orders of the elected government and defy the orders of the civil service.”
Did you know that the introduction of the Delhi Ordinance in the Rajya Sabha is impermissible?
I explain the three reasons and more in this conversation. pic.twitter.com/Jf9N9gJCBR
— Raghav Chadha (@raghav_chadha) July 23, 2023
Raghav Chadha also highlighted three basic reasons why the proposed bill is clearly unconstitutional:
1. The move to set aside the judgment of the Supreme Court: This Ordinance and any Bill along the lines of the Ordinance, seeks to nullify the situation laid down by the Supreme Court without amending the Constitution from which the situation arises. Prima facie it is unacceptable and unconstitutional. Contrary to the Supreme Court’s judgment, by seeking to take away control of the “services” from the Delhi government, the Ordinance has lost its legal validity as no law can be made to set aside the court’s decision without changing the basis of that decision. The Ordinance does not change the basis of the judgment of the Supreme Court, which is the Constitution itself.
2. Violation of Article 239AA: Article 239AA(7) (a) empowers Parliament to make laws to “give effect to” or “supplement” the provisions contained in Article 239AA. Under the scheme of Section 239AA, control over ‘services’ rests with the Delhi Government. Therefore, the Bill following the Ordinance is not a Bill “giving effect to” or “supplementing” Section 239AA, but a Bill intended to injure and destroy Section 239AA, which is not permissible.
3. Challenge to Constitutionality: The Ordinance has been challenged in the Supreme Court, which by its order dated 20 July 2023 referred the question to a Constitution Bench whether an Act of Parliament (and not just an Ordinance) can violate the fundamental requirements of Article 239AA. Since the constitutionality of any Act passed by the Parliament is already before the Constitution Bench of the Supreme Court, it would be appropriate to await the outcome of the judgment before introducing the Bill.
Raghav Chadha said that any law made by Parliament must “supplement” the provisions of Article 239AA and remain within the ambit of matters incidental or consequential to those provisions. Therefore, the proposed Bill containing provisions to the contrary of Article 239AA lacks legitimate legislative merit and is unconstitutional.
The AAP MP urged the Rajya Sabha Speaker to stay the introduction of the bill and direct the government to withdraw it to protect the Constitution and uphold the principles of democratic governance in Delhi.
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