New Delhi: The Government of NCT of Delhi (Amendment) Ordinance, 2023 was notified by the BJP-ruled Central government in the late hours of 19th May 2023.

The Ordinance takes away control of the elected AAP government of Delhi over its officers, which was recognised by the Supreme Court Constitution Bench in a historic 5-0 verdict on 11th May 2023, and gives it to the BJP-ruled Centre. The Ordinance is widely being viewed by experts as unconstitutional and a direct attack on the authority of the Supreme Court.

Here are 5 reasons why:

1. Contravenes the principles of federalism: In its 11th May judgment, the SC noted that in a country like India, federalism ensures representation of diverse interests. It is also a part of the Basic Structure of the Constitution that cannot be amended by the Parliament.

However, the new Ordinance substantially limits the powers of NCT Government, which are guaranteed under the Constitution. Under Article 239AA of the Constitution, the NCT of Delhi has legislative and executive powers over services, which is Entry 41 of the State List.

The Ordinance takes away the power of Delhi’s Vidhan Sabha to legislate on the matter of services, and obliterates the Delhi Government’s executive control. Experts agree that the Ordinance flies in the face of clause (3)(a) of Article 239AA. Central Government cannot take away the power of Delhi Assembly to legislate on services, which power has been guaranteed by the Constitution.

2. Against the Supreme Court decision: The Ordinance seeks to nullify the Supreme Court’s unanimous decision by a five-judge constitution bench on 11 May, 2023. However, the Central Government/Parliament cannot simply undo the effect of a judgment of the Court by an ordinance or even a legislation.

It must address the underlying reasoning of the Court by removing the basis of the judgment. That basis of the judgment is Article 239AA, and the principles of representative democracy, federalism and accountability.

By issuing the Ordinance which violates Article 239AA, the Central Government has also contravened the Supreme Court judgement in Madras Bar Association v. Union of India, dated 14 July 14, 2021.

3. Suppresses bureaucratic accountability and responsibility: Taking a pragmatic view in its verdict of 11th May 2023, SC highlighted the triple chain of accountability: the people hold the legislature accountable through periodic elections; the Government functions as long as it enjoys the support of the legislature; and the bureaucracy is to be held accountable for their actions by the Delhi Government.

The court pointed out that if officers stop reporting to ministers or do not follow their instructions, the principle of collective responsibility of the Ministers will be affected. But the Ordinance practically removes the Delhi Government from exercising any control in the officers.

It is a much larger and illegal roadblock placed by the Centre to obstruct the functioning of the AAP-ruled Delhi Government.

4. Against the people of Delhi and democracy: The ordinance is being seen as an affront to the democratic will of the people of Delhi. By way of popular elections, the people of Delhi have placed their trust in the elected NCT Government ruled by CM Arvind Kejriwal, and the Government has a duty to fulfil towards them.

The ordinance stops the democratically elected government from accomplishing its development and welfare agenda. If administrative services are excluded from the domain of Delhi Government, the ministers would be prevented from controlling the civil servants who are to implement the Government’s decisions.

Thus, the Ordinance is antithetical to democracy itself. Experts concur that this is a virtual takeover of Delhi’s elected government by the Centre. It completely abrogates the mandate given by the people of Delhi to the NCT Government.

5. Political move to blunt the opposition: The Ordinance is being seen as BJP’s reaction to having lost ground in crucial state elections and judicial battles to the AAP government in Delhi.

By introducing the ordinance, the Centre wants to make sure that it has control on all projects being executed by the elected Delhi Government, and to effectively stop them if need be.

In the run up to the 2024 general elections, the Ordinance is being dubbed as a tactic to thrall the opposition from gaining momentum. In the coming year, it has the potential to even affect free and fair elections, another element of the Basic Structure of the Constitution.