The Aam Aadmi Party has strongly opposed the introduction of a bill in the Rajya Sabha to replace the Government of National Capital Territory of Delhi (Amendment) Ordinance. The ordinance, promulgated by the President on 19 May 2023, seeks to undermine the democratic and popularly accountable model of government in Delhi. The bill proposed by the Centre, aims to extend the provisions of the ordinance into a full fledged legislation. Opposing this move, AAP Senior Leader and Rajya Sabha MP Shri Raghav Chadha has written to Rajya Sabha Chairman Shri Jagdeep Dhankar.

In his letter, Shri Raghav Chadha has stated, “On 11 May 2023, a Constitution Bench of the Supreme Court unanimously held that as a matter of constitutional requirement, the civil servants serving in the Government of NCT of Delhi are answerable to the elected arm of the government, i.e. the elected Council of Ministers presided over by the Chief Minister. This link of accountability was held to be crucial to a democratic and popularly accountable model of government.”

The MP further places on record that in one single stroke, the Ordinance has undone this model by seizing this control again from the duly elected Government of Delhi and vesting it in the hands of the unelected LG. “The Ordinance’s design is evident, i.e. to strip the Government of NCT of Delhi down to only its elected arm – enjoying the mandate of the people of Delhi, but bereft of the governing apparatus necessary for meeting that mandate. This has left the GNCTD in a crisis of administration, put day-to-day governance in jeopardy, and has led the civil service to stall, disobey, and contradict the elected Government’s orders.”

Shri Raghav Chadha also highlighted three fundamental reasons why the proposed Bill is blatantly unconstitutional:

  1. Move to Nullify Supreme Court’s Decision: This Ordinance and any Bill along the same lines as the Ordinance, seeks essentially to undo the position laid down by the Supreme Court without amending the Constitution itself from which this position flows. This is on the face of it impermissible and unconstitutional. By seeking to take away control over “Services” from the Delhi Government, contrary to the Supreme Court’s decision, the Ordinance has lost its legal validity because no law can be made to nullify the court’s decision without changing the basis of that decision. The Ordinance does not change the basis of the Supreme Court’s decision, which is the Constitution itself.
  2. Violation of Article 239AA: Article 239AA(7) (a) empowers Parliament to make a law to “give effect to” or to “supplement” the provisions contained in Article 239AA. Under the scheme of Article 239AA, control over ‘Services’ lies with the Delhi Government. A Bill in line with the Ordinance is, therefore, not a Bill to “give effect to” or “supplement” Article 239AA but a Bill to damage and destroy Article 239AA, which is impermissible.

3.Constitutionality under Challenge: The Ordinance is under challenge in the Supreme Court, which vide its order dated 20 July 2023 has referred the question of whether an Act of Parliament (and not just an Ordinance) can violate the substantive requirements of Article 239AA, to a Constitution Bench. As the constitutionality of any Act that may be passed by the Parliament is already before a Constitution Bench of the Supreme Court, it will be proper to await the outcome of the decision before introducing the Bill.

Shri Raghav Chadha firmly stated that any law enacted by Parliament must “supplement” the provisions of Article 239AA and remain within the bounds of matters incidental or consequential to those provisions. Therefore, the proposed Bill, containing provisions contrary to Article 239AA, lacks valid legislative competence and is unconstitutional.

The AAP MP has urged the Rajya Sabha Chairman to prevent the introduction of this Bill and direct the government to withdraw it in order to safeguard the Constitution and uphold the principles of democratic governance in Delhi.

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